Madras High Court
Gnanasigamani vs Kamala Bai And Anr. on 17 April, 1990
Equivalent citations: (1990)2MLJ80
ORDER Jagarthanam, J.
1. O.M.S. No.9 of 1985 has been filed by Gnanasigamani, the husband, for the dissolution of his marriage with his wife, Kamala Bai. O.M.S. No. 12 of 1983 has been filed by the wife for the restitution of conjugal rights.
2. The facts and circumstances leading to the filing of these two suits and the defences raised therein, in pith and substance, may succinctly be stated as follows: The marriage between the spouses was solemnized on 14,5.1979 in the C.S.I. Church, S.T. Mangaud, Kanyakumari District. The husband was employed as Junior Assistant. Medical Section, University of Madras and was residing in Madras. Even before marriage, the wife, who was a resident of Kalliyikkavilai Village in Kanyakumari District, was employed as a Typist in the office of the Christian Literary Society, Madras, and she continued her employment after marriage also, living at the matrimonial abode. It is alleged that while so living, the wife's behaviour towards the elders at home was beyond tolerable limits and very often she returned home late in the night for no reason whatsoever, giving rise to a suspicion of her fidelity. When the husband enquired, he came to know that his wife even before marriage was intimate with one John Rose for fairly long period, in the sense of they living as husband and wife, and even after her marriage, such relationship never got snapped and she led an adulterous course of life with him. On 20.6.1979, she sulked away from the matrimonial home without the knowledge of any one in the house. The husband came to know from one J. Santhi, a co-worker with his wife, that his wife and John Rose were seen together loitering near Moore Market on the day of his wife's departure from the matrimonial home. On 23.6.1979, the husband gave a complaint to the Triplicane police station about the missing of his wife and he stated that he suspected foul play at the hands of John Rose, a cousin of his wife. The husband would also allege that thereafter, he received a letter dated 25.6.1979 from his wife, giving details of her going out of the '' house and asking his pardon for such an act, and she ended the letter as "Kamala who had been unfaithful to her husband". In such circumstances, the husband filed O.M.S.No.19 of 198.2, praying for the dissolution of the marriage between him and his wife. The wife entered appearance and resisted the suit by filing a counter. After framing issues, it was posted for trial and this Court dismissed the same for default The initial restoration application as also the subsequent one filed by the husband was dismissed.
3. In the meanwhile, the wife filed O.P. No. 39 of 1982 before the District Judge, Nagercoil at Kanyakumari, for restitution of conjugal rights, alleging that only with the consent and knowledge of her husband, she went to her native village in July 1980 for medical treatment and her husband in fact thereafter came and stayed with her for some time in the village, and returned to Madras after assuring that he will return to the village within a short period and permanently settle there. That suit was transferred to the file of this Court and numbered as O.M.S.12 of 1983.
4. The husband filed the present suit O.M.S. No. 9 of 1985, impleading his wife and John Rose as parties, on the same set of facts, giving rise to the filing of O.M.S.No.19 of 1982. On receipt of process, the wife as well as John Rose entered appearance through the counsel of their choice and resisted the action by filing separate counters. The counter filed by John Rose was returned for rectifying certain defects by the office on 29.3.85 and the same was not at all re-presented after due compliance. John Rose or his counsel did not, thereafter, take part in the proceedings.
5. The resistance offered by the wife to She divorce action initiated by the husband mainly rested on two grounds, One revolving on facts and the other on law. They are:
(i) To state that the wife had pre-marital relationship with John Rose and such relationship continued even subsequent to the marriage, in the sense of she leading an adulterous life, is shorn of reality of the situation.
(ii) The present Suit based on the same set of facts and circumstances of the case, giving rise to the institution of O.M.S.No.19 of 1982, which had been dismissed for default, would be barred by res judicata, and consequently the relief claimed cannot be granted.
6. The husband resisted the suit, O.M.S.No.12 of 1983, filed for restitution of conjugal rights on the sole and lone ground that the wife alone deserted him by leaving the matrimonial abode on 20.6.1979, without his knowledge and that thereafter she never returned and that at no point of time he withdrew from her company.
7. Following are the issues framed for trial in O.M.S.No.l2 of 1983:
(i) Whether the petitioner is entitled to the restitution of conjugal rights?
(ii) Whether the first respondent has withdrawn from the company of the petitioner?
8. Following are the issues framed for trial in O.M.S.No.9 of 1985:
(i) Whether the first respondent had committed adultery as alleged by the petitioner?
(ii) Whether this petition is maintainable in view of the dismissal of O.M.S. No. 19 of 1982 for the same relief?
(iii) Whether the petitioner is entitled to a decree of divorce as prayed for?
9. Issue No. (ii) in O.M.S. No. 9 of 1985 revolving on the question of maintainability of the suit can be taken up for consideration, first and foremost, and the other Issues in O.M.S. No. 9/85 viz. Issues (i) and (iii) can compendiously be grouped together along with Issues (i) and (ii) in O.M.S. No. 12/83, and disposed of, for the simple reason that the finding given one way or the other on Issues (i) and (iii) in O.M.S.No.9/85 will have a direct bearing on Issues (i) and (ii) in O.M.S. No. 12/83, in the sense, that, if the question of adultery is found against the husband and consequently no decree nisi for divorce can be passed, it goes without saying that there can be no justification whatever for the husband to resist the other suit for restitution of conjugal rights and the same has to result in a decree as prayed for. No doubt, true it is that the maintainability of O.M.S.No.19 of 1982 had been questioned on the legal plea of res judicata. Learned Counsel for the wife, realising the legal lacuna in setting up such a plea, would frankly submit that the maintainability question cannot at all be decided on the plea of res judicata and he would in fact base the maintainability question on Order 9 Rule 9 C.P.C., which is applicable to matrimonial proceedings under the Indian Divorce Act, hereinafter referred to as 'the Act', on the face of the provision contained in Order 27 Rule 14 of the Original Side Rules and Section 45 of the Act, which are extracted hereunder:
Order 27 Rule 14 of the Original Side Rules, reads as under
Subject to the foregoing rules, the provisions of the Code and of these rules with respect to civil suits and matters shall apply to all proceedings under the said Act.
Section 45 of the Act (Indian Divorce Act) reads as under:
Code of Civil Procedure To Apply:
Subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure.
There is no manner of doubt whatever that, on the same set of facts and circumstances and the same cause of action as detailed in the present suit, the husband earlier filed O.M.S.N0.19/82 for the same relief as prayed for in the present suit, which was in fact dismissed for default, and the initial restoration application as well as the subsequent one filed by the husband were also dismissed, vide Exs. P-12 to P-15, P-17 and R-5. The matter was not at all agitated further and consequently the dismissal of that suit has become final.
10. For understanding the provision of Order 9 Rule 9(1) C.P.C., it is better to extract the provision of Order 9 Rule 8 C.P.C.
Order 9 Rule 8 C.P.C. reads as follows:
Procedure Where Defendant Only Appears:
Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates the remainder.
Order 9 Rule 9(1) reads as follows:
Decree Against Plaintiff By Default Bars Fresh Suit- Were a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
From the provisions extracted above, it is crystal clear that once the suit is dismissed for default, the plaintiff shall be precluded from bringing any fresh suit in respect of the same cause of action. The Punjab and Haryana High Court in Manjit Kaur v. Gurdial Singh A.I.R. 1978 P & H 150 had occasion to consider the effect of Order 9 Rule 9 C.P.C., wherein an application under Section 10 of the Hindu Marriage Act was dismissed for default and not restored, and in the fag end of Paragraph 7 of the judgment, it was held as follows:
The facts leading to the filing of the petition and the cause of action for both were, therefore, the same. No application for restoration of the first suit was ever filed. On these facts and in the state on law discussed by me above, the respondent appears to me to be precluded from filing the present application for divorce in respect of the same cause of action, that is the same desertion. The order of the learned District Judge to the contrary cannot, therefore, stand.
The observation as extracted above is on all fours applicable to the case on hand, notwithstanding the fact that the relief of divorce is sought for under the Indian Divorce Act.
11. Learned Counsel for the husband, having been placed in a predicament position, in the sense of not being able to meet out the argument so projected by recourse to precedents of superior Courts of jurisdiction in India, took asylum and shelter in quoting an English decision in Thompson v. Thompson 1957 1 ALL E.R. 161, and relied on the following observation of Denning, L.J.:
...once an issue of a matrimonial offence has been litigated between the parties and decided by a competent Court, neither party can claim as of right to re-open the issue and litigate it all over again if the other party objects; but the Divorce Court has the right, and indeed the duty in a proper case, to reopen the issue, or to allow either party to reopen it, despite the objection of the other party.
12. The English decision can surely be taken as a guide for understanding the legal implications of the provisions contained in the Indian Statute, provided the provisions of the Indian as well as English law are one and the same, and when there are no Indian precedents. On the face of the applicability of the Code of Civil Procedure, by the salient provisions contained in the Original Side Rules, and the Indian Divorce Act, as stated above, which contain a specific provision in Order 9 Rule 9 C.P.C., precluding the plaintiff from filing a fresh suit in respect of me same cause of action where the suit originally instituted was dismissed, it goes without saying that the decision in Thompson v. Thompson 1957 1 All. E.R. 161 cannot at all be countenanced on the facts and circumstances of the present case, but, on the contrary, the observations of the decision in Manjit Kaur v. Gurdial Singh A.I.R.1978 P & H 150 have to be given credence and weight. In this view of the matter, there is no other go except to give a finding on this issue that the present suit is not maintainable in view of the dismissal of O.M.S. 19/82 filed earlier.
13. Issue No. (ii) in O.M.S.No.9/85 having been disposed of by giving a finding, what survives for consideration are the other issues in both the suits and they could be now conveniently disposed of -together, as already stated. In the process of such consideration and disposal, the arena of discussion revolving on the question of adultery stated to have been committed by the wife (Issue No. (i) in O.M.S. 9/85) can now be delved deep for arriving at a conclusion.
14. The facts and circumstances of the case are so intricate and delicate as is not possible to come to any definite conclusion, on the question of adultery stated to have been committed by the wife, unless we are able to understand the significance of the meaning of the word 'adultery', which is admittedly not defined in the Indian Divorce Act. Its meaning in Divorce Law is beyond doubt and is understood to mean the willing sexual intercourse between a husband or wife with one of the opposite sex while the marriage subsists. Pertinent it is to note In this context that the judicial decisions as to the mode of proof, of adultery is rather very settled. Adultery may be proved in various ways. Direct proof is very rare and even if procured the Court will look upon it with disfavour as it is highly improbable that any person could be a witness to suds acts as they are generally performed with almost secrecy. It is a fundamental rule that it is not necessary to prove the direct fact of adultery. The fact may be sufficiently proved by circumstances or by circumstantial evidence from which adultery might be inferred as a necessary conclusion. The burden of proof for misconduct lies heavily on the party alleging it. The party must show that on or between the dates specified in the petition, the respondent was guilty of misconduct. The same strict proof is required of adultery, as required in a criminal case, before an accused is found guilty, i.e., the Court must be satisfied of the matrimonial guilt beyond reasonable doubt.
15. The Supreme Court of India had occasion to consider the standard of proof required for the proof of matrimonial offence in E.J.White v. Mrs. K.O. White . On an interpretation of the phrase "satisfied on the evidence" used in Section 14 of the Act, the following observation was made:
The important words requiring consideration are 'satisfied on the evidence'. These words imply that the duty of the Court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition if not so satisfied. In Section 4 of the English Act, Matrimonial Causes Act of 1937 the same words occur and it has been there held that the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy what Sir Willirm Scott described in Loveden v. Loveden (1810) 161 E.R.648 (D) as the guarded discretion of a reasonable and just man'. Lord Mac Dermott referring to the description of Sir William Scott said in Preston Jones v. Preston Jones 1951 A.C. 391 at P. 417 (E):
The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be 'satisfied' in respect of a ground for dissolution, with something less than proof beyond reasonable doubt. I should, perhaps, add that I do not base my conclusion as to the appropriate standard of proof on any analogy drawn from the criminal law. I do not think it is possible to say, at any rate since the decision of this House in Mordaunn v. Moncreiffe (1874) 30 L.T. 649 (F) that the two jurisdictions are other than distinct. The true reason, as it seems to me, why both accept the same general standard-proof beyond reasonable doubt -lies not in any analogy but in the gravity and public importance of the issue with which each is concerned.
16. On the backdrop of the judicial principles enunciated as above and the decision of the Supreme Court, on the question of standard of proof expected of to be given in matrimonial matters, let me sift the various pieces of evidence, direct and circumstantial, on record.
17. The foundation laid in the share of plea for the commission of the act of adultery is that the wife had sexual relationship with John Rose prior to her marriage and such relationship without any cessation whatever continued even subsequent to marriage, in her leading an adulterous course of life. Admittedly, there is no direct evidence for the proof of her premarital sexual relationship with John Rose or for her illicit connection with him subsequent to marriage. Only certain so-called incriminating pieces of circumstances in the conduct of the wife had been relied upon by the husband so as to make it possible for an inference to be drawn from such circumstances in proof of the adulterous course of her life and her pre-marital sexual relationship. Following are the circumstances relied upon for such a purpose:
1) Exhibition of intolerable temperament by the wife towards the elders in the family during her stay in the matrimonial abode and her leaving the matrimonial home with an extra petty-coat to the office under the facade of taking bath in office, after office hours, as there was copious supply of Corporation water available, obviously with a view to have sexual relationship with a person of her choice viz. John Rose during his opportune stay at Madras.
2) Her sudden disappearance from the matrimonial home on 20-6-1979, parting company with her husband and staying at Trivandrum, far away from Madras, for about 18 days and writing letter from there, and her appearance before this Court on 9.7.1979, pursuant to the initiation of habeas corpus proceedings by the husband.
3) The opportune stay of John Rose in the Vijaya Lodge at Madras on 2.7.1979, serving as a fertile base for her to be in his blissful company.
18. Now let me deal with the first circumstance. There is no manner of doubt whatever that the wife happened to reside at Korukkupet near Anna Nagar, prior to her marriage and was coming to office in electric train, as evidenced by Ex.R-9, railway pass, and had a friend by name Mercy Bai, living in her area. The husband, R.W. 1, would have the guts and temerity to say that during the period of her stay there, her inclination to have sexual relationship with John Rose got fructified by her living with him as husband and wife, though not married. Obviously, for his deposition in the suit, he appears to have derived the source of information and knowledge from Ex.R-13, typed copy of letter sent to him by post. The letter is not admittedly signed and does not even appear to have any date, but, however, R.W. 1 would connect this letter Ex.R-13 with Mercy Bai, in the sense of the same having been written by her. No doubt, the letter discloses the sexual life of the wife prior to her marriage and her getting conceived and aborted three times. The further information revealed by the letter is that she was compelled to lead a married life with her husband much against her wish, and in such a circumstance an earnest plea had been made therein, requesting her husband not to interfere with her living along with a person of her choice. There is one more revealing factor in the letter that she would very often stay in lodge under the facade of informing others that she was to meet a relation of hers in the City of Madras. The contents of Ex.R-13 cannot be relied upon for any purpose whatever, in the absence of the examination of the person connected with the letter. No reason had been given for the non-examination of the author of this letter. However, R.W. 1, obviously perturbed by the allegation imputing unchastity to his wife, thought fit to introduce evidence by his reporting to state that whenever she left home for office, she used to take along with her a petticoat. The reason given by her in such a situation, according to him, was that the water in the house was salty and because of taking bath in such water, her hair fell, and consequently she decided to take bath in the office after the working hours in the Corporation water which was conducive for the hair. On R.W. 1's verification the reason for her taking the petty-coat to office, was found to be not true, inasmuch as people in the office informed him that she never took bath at all in the office. Since then, R.W. 1 suspected the fidelity of his wife and thought that she was taking the petty-coat obviously for the purpose of having sex with John Rose during his stay at Madras. This sort of evidence cannot at all be countenanced, on the face of the very conduct of the husband R.W. 1 himself, in writing letters to his mother-in-law, residing at her native place, Kanyakumari. On 30.5.1979, he wrote Ex.P-1 letter, informing that he and his wife were living happily and what worried him was that his wife was not taking care of her health by taking enough food to sustain her happy living. He expressed his anxiety in such a way that she was not even carrying food to the office, in the sense of an affectionate husband. The term and tenor of this letter would indicate in clear cut terms that at no point of time he suspected about his wife going miles and miles away from the path of rectitude and virtue as not deposed by him. He would write another letter Ex.P-2 dated 19-6-1979 to his mother-in-law, indicating her that someone, prior to marriage, obviously as a result of enmity, administered poison (sic) to his wife, and conseuently she was not in a position to consume food. He further entreated his mother-in-low that such poison has to be taken out, so as to make her life happy with him.
19. The interesting aspect of the evidence of the husband that his wife exhibited intolerable behavior towards the elders in the family during her stay the matrimonial abode, was perhaps legged in by him, with a view to make it appear that because of her infatuation and inclination to have sexual relationship with a person of her choice viz. John Rose, and not liking him, she behaved so. This aspect of the evidence cannot at all be given any credence and weight. The sordid fact is that whilst her stay in the. matrimonial abode at Madras she and her husband alone were living, and the elders viz. the in-laws and others were residing in the native place, is candidly admitted by R.W.1.If such be the case, it is beyond one's comprehension as to how any opportunity could have been provided to the wife to have shown an intolerable behavior towards the elders in the house. In state of affairs, the materials placed on record, can by no stretch of imagination be stated to have established the first circumstance beyond any shadow of doubt and, consequently, the question of placing any reliance upon such a circumtance will not arise for consideration at all for coming to the conclusion by way of inference or deduction from such circumstances that the wife had enough of opportunity to have sexual relationship with John Rose.
20. Now, the second circumstance may fall for consideration in the arena of discussion. Admittedly, the wife disappeared from the matrimonial abode on 20-6-1979 and was not treacable till 7-7-1979, the date on which the Triplicane Police traced her and gave information to R.W. 1, the husband. Ke would say that his wife, R.W. 1, pursuant to a pre-arranged plan, eloped with John Rose from the matrimonial abode and stayed for nearly eighteen days at Trivandrum and other places and from this, it is legitimate to infer that there could have been fortuitous opportunity for them to have Sexual relationship during that period, The wife, on the other hand, would say that her leaving the matrimonial home was not the resultant product of voluntariness on her part, but that it was involuntary. She would elaborate this by stating that when she was in her office on that day, John Rose came and informed her that her husband met with an accident and was hospitalised, and she immediately accompanied him in & taxi and during such travel, John Rose gave two plantains to her and consoled her that everything would go well. After eating the plantains, she became unconscious and did not know what happened thereafter and ultimately she found herself in a place at Ammachel near Trivandrum. This treacherous act of John Rose was perhaps perpetuated to wreak vengeance on her family, in view of the previous enmity he had. So moot the question it is now, to decide as to which of the versions projected rings true in the circumstances of the case. The materials available on record. if scanned with care, caution and circumspection, would reveal in a clinching way that the version as projected by the husband cannot at all be countenanced. No doubt, the husband, as R.W. 1 would say that two days prior to her disappearance from the matrimonial home, i.e. on 18-6-1979, she was highly perturbed and agitated, in the sense of herself not knowing what she was doing. In elaboration of this, he would depose that she took him to China Bazaar aimlessly without any purpose and subsequently they returned home. He also deposed that with a view to elope with John Rose, she had made prior arrangement, by submitting leave letter to her office for leave from 21-6-1979 to 8-7-1979, as evidenced by the Xerox copy of the letter Ex.R-8. The admissibility of this letter Ex.R-8 was seriously challenged by the other side, leave alone deciding the question, and even admitting such a letter had been written by the wife, it is of no consequence in the circumstances of the case, in the sense of the letter not projecting the theory of her elopement with her paramour. This aspect of the evidence of the husband is belied by his very conduct in writing letters to his mother-in-law, especially Ex.P-2 dated 19-6-1979, showering all his affection for his wife, and stating that they were having a happy married life. If really, he suspected the fidelity of his wife, he would not have written such a letter. Further, in the complaint Ex.R-10 dated 21-6-1979 given at the D-1 police station about the missing of his wife, he had not complained about the suspected elopement with John Rose, he would also file a second complaint Ex.R-1 dated 26-6-1979 wherein he had stated that he suspected one John Rose might have kidnapped his wife. The tenor of both the complaints, Ex.R-1 and R-10, do not indicate that his wife voluntarily left home, but on the other hand they would indicate that she had been kidnapped by John Rose.
21. This aspect of the matter gets further projected by way of confirmation by the very conduct of the husband in withdrawing the complaint given before the D-1 Triplicane Police Station, by addressing a letter on 8-7-1979 under the original of Ex.P-3. This letter would reveal the exuberant happiness he had on the tracing out of his wife and consequently he did not want any further probe and investigation in the matter at all. Pursuant to the letter, the police also dropped further proceedings. It is to be taken note of here that apart from preferring the police complaint, he had also filed a writ petition, W.P.No.2640 of 1979, before this Court, impleading the Inspector of Police D-1 Triplicane Police Station, and CJohn Rose as respondents, praying for the rescue of his missing wife from the unlawful custody of John Rose. Ex.P-16 is the copy of the affidavit he filed in the writ petition and in paragraph 3 thereof he stated thus:
I apprehended that the said C. Johnrose, the second respondent who is only a cousin wields more influence with my wife than any other own brothers. I further apprehend that since the said C. Johnrose did not like my marriage with Kamala Bai, he may cause harm to the person and property of my wife if she is not rescued from his illegal and unlawful custody.
These averments would throw flood of light on the conduct of his wife in leaving the matrimonial abode. It is explicit that his wife did not at all leave the house voluntarily and that it is the intriguing hand of Johnrose which made the mischief to cause a wreck in their marital career, obviously as a result of his entertaining a grudge with the family members of his wife as a result of her marriage taking place much against his wishes. Further the husband's anxiety and concern for the welfare of the wife is also clear, by his apprehension that his wife may be harmed by Johnrose and she should be rescued. Further; when the wife was produced before Court on 9-7-1979,' he willingly took her back as his wife and this Court, after recording such a finding, disposed of the writ petition, as evidenced by Ex.P-4, copy of the order in the writ petition.
22. No doubt true it is that when the wife was away from the matrimonial abode at Trivandrum, she wrote two letters Exs.R-6 and R-7 in her own handwriting to her husband and these two letters are relied upon heavily for the inference of the treacherous conduct of his wife in having illicit relationship with Johnrose. The sifting of the contents of these two letters would reveal nothing about sexual relationship the wife had with Johnrose. The husband as R.W. 1 would concede during the course of cross-examination that it is not possible to infer any such illicit relationship from the terms and tenor of these two letters. What the husband was worried was that Ex.R-7 letter has been ended by stating, " ". The incorporation of such phraseology in the letter cannot by any stretch of imagination be stated to have pointed out to the one and only thing of her having been in illicit intimacy with others, causing violation to the bonds of matrimony and there may be other treacherous acts committed by her against her husband. Even the so-called other treacherous acts committed by the wife could not possibly be inferred in the circumstances of the case. The husband himself clearly admits that most of the contents of both the letters are far from truth. Ex.R-6 would reveal that the husband very often met his wife in her office as well as in the hostel, prior to their marriage and compelled her to get married to him. The wife was not at all willing for the marriage and the husband in turn utilising the services of her brothers and other family members got her married against her consent. The letters further narrate that the members of the family of the husband are suffering from the virulent disease of leprosy and she was, therefore, afraid of leading a matrimonial life with him and hence decided to see that somehow or the other, the marriage is dissolved once and for all. Admittedly, none of the members of the husband's family is suffering from leprosy and the husband had no occasion to meet his wife prior to marriage. It is a marriage arranged by the elders and only subsequent to marriage, he had the occasion to move with his wife. In such state of affairs, there was no other go for the husband except to admit that most of the contents of the two letters are miles away from truth. It is in this context, we have to take into account the reason for the incorporation of such recitals in both letters. As adverted to earlier, the wife had left the matrimonial abode as result of her having been administered some poison, which resulted in herself losing her mental faculties and she was more or less in the grips of Johnrose. The wife, as R.W.1, would state in so frank a fashion that she did write those letters by her own hand, not knowing what she was doing under the influence of the drugs administered to her. It is to be remembered here that as early as 19-6-1979, the husband wrote Ex.P-1 letters to his mother-in-law, about which mention had been made earlier, that his wife was suffering from the evil effects of ' ' and that some arrangement must be made to take out the same, to enable her to have a happy life with him. The possibility of Johnrose kidnapping his wife from his house by administering drugs, cannot at all be ruled out in the circumstances of the case. The evidence of R.W. 1 and her brother R.W.2 would prove in so clinching a fashion that her marriage had been arranged much against the wishes of Johnrose and since then he bore a grudge against the family members. This apart, Johnrose had resorted to giving complaints against R.W.2 before the police at Kollengode to wreak vengeance against him. One complaint so given resulted in the filing of a charge sheet and trial was held in S.T.C.No.426 of 1979 before the Judicial I Class Magistrate, Kuzhithurai, as evidenced by Exs.P-5 and P-6, charge-sheets and the extract of the Register for Summary Trial Cases. Johnrose thus possibly imbibed with the motive to wreak vengeance on the family members of the wife, would have thought it fit to make her write the two letters Exs.R-6 and R-7 to make the husband suspect the fidelity of his wife and thereby cause wreckage to her marital career.
23. Amazing it is to note that all the circumstances are against the husband. He would contrive the idea of confession of adultery by the wife before the police on 8-7-1979 when she was enquired. Alas, though the husband would say so in chief-examination, he could not maintain this statement till the end and he in fact broke down by stating during the cross-examination, that at the time when she made such a statement before the police, he was not bodily present. The further sordid fact is that the moment he had given Ex.P-3 letter for withdrawing the complaint, the matter was closed without any enquiry into the matter. As such, the possibility of recording a statement is altogether ruled out of consideration. Even if there was any statement recorded during such enquiry, if at all there was one, the statement so recorded had not been produced before Court. It is also important to note that in the lawyer's notice given on 14-8-1980 under Ex.P-7, he had not whispered anything about the so-called confession of adultery by his wife and he had not stated so in the plaint filed in O.M.S.No.19 of 1982, under the original of Ex.P-12.
24. The further astounding factor is that Johnrose is none else than the cousin brother of his wife. Even such relationship, the husband wants to conceal by stating that he did not know the relationship at all till his deposition in Court. Despite the assiduous precaution taken by him in deposing so, the cat has come out of the bag, in the sense of revealing that he was possessed of the information long before. He had mentioned such relationship in the complaint before the police under Ex.P-3 as well as in the affidavit filed before the Court in the writ proceedings under Ex.P-16. The reason for such concealment is rather obvious. If the relationship is admitted, it is likely that such relationship would produce a telling effect on the mind of the Court that the alleged illicit intimacy of the wife with Johnrose could not possibly be believed to be true. The further revealing factor is that Johnrose was aged 52 or 53 years at the time of her marriage and she was 25 years then. In such state of affairs, it is highly improbable to infer any sort of illicit relationship between the two. As such the second circumstance bristles next to nothing, in the sense of not advancing the case of the husband to any extent whatever regarding adultery by wife.
25. Coming to the third circumstance, Ex.R-12 the Xerox copy of the Register of Arrival, pertaining to Neo Vijaya Lodge, 18, Francis Joseph Street, Madras-1, for the date 2-7-1979, is the pivot on which the circumstance rotates. No doubt, true it is that this document contains the name of a person called Johnrose. What is sought to be drawn by way of inference from this is that Johnrose concerned in the case had the opportunity to stay in the Lodge and be in the blissful company of the wife of Gnanasigamani, sharing bed with her. It is too much to make such an inference in the circumstances of the case. This document cannot prove by itself in the absence of the examination of any one connected with the management of the lodge, when especially the husband as R.W.1 candidly admitted that he did not have any personal knowledge about the stay of Johnrose in the lodge during the relevant period and that the knowledge he derived on this aspect of the matter is traceable to his inquiry of the Proprietor of the lodge and his son, who were admittedly not examined for any reason whatever. Puzzling it is to note that he would not even say that he heard from those persons that Johnrose had stayed in the lodge along with his wife. Even assuming that this document Ex.R-12 proved the stay of Johnrose in the lodge during the relevant date, it cannot at all be stated that Johnrose stayed in the lodge and shared the bed along with his wife. As such, it is too much to inter guilty misconduct on the part of the wife, in leading adulterous course of life by sharing bed with Johnrose. Therefore, there is little merit and substance in the third circumstance and consequently, the same is also rejected.
26. Apart from the merits of controversies between the parties, the suits are also liable to be dismissed on the ground of laches. Section 14 of the Act contains a salient provision regarding laches and it prescribes that the Court shall not be bound to pronounce a decree of dissolution of marriage even on the proof of any of the grounds mentioned therein if the petitioner has in the opinion of the Court been guilty of unreasonable delay in presenting or prosecuting such a petition. So far as the case on hand is concerned, the husband initiated divorce proceedings so early as 1982 by filing O.M.S.No.19 of 1982 which was admittedly dismissed for default and subsequently he filed the present suit O.M.S. No. 9 of 1985. The materials on record would point out that the various applications, the husband filed for setting aside the exparte order of dismissal of O.M.S.No.19 of 1982 for default and the filing of the present suit, O.M.S.No.9 of 1985, had not been diligently pursued and prosecuted by him, giving rise to inordinate delay which has not at all been explained by him by adducing any reasonable or convincing reason.
27. In view of what has been stated above, the finding on Issue No.(i) in O.M.S. No. 9 of 1985 regarding adultery by wife, has to be answered necessarily against the husband.. Once such a finding is given, it goes without saying that the husband is not entitled to a decree of divorce and hence Issue No. (iii) in O.M.S. No. 9 of 1985 is also found against him.
28. What survives for consideration now are Issues (i) and (ii) in O.M.S.No.12 of 1983 revolving on the question of restitution of conjugal rights as prayed for by the wife. Admittedly, on and from 9-7-1979, the wife had been residing in her native village. It has to be recapitulated that it was on 9-7-1979 that the husband, in the writ proceedings, agreed to take take his wife and in fact he took her to the matrimonial abode. The evidence of the wife, as R.W. 1, and her brother, R.W. 2, would indicate that the husband requested, R.W.2 to take his wife to the native place for treatment, so that the effect of the administration of drugs on her could be removed from her once and for all. Accordingly, R.W.2 took his sister to the native place and gave treatment, and the progress she made had been duly intimated by her letters Exs.R-2 and R-3 to her husband. Her evidence would reveal that the husband in fact visited her place and after staying there for some days, left her stating that he would come to take her after settling a permanent home. When the husband did not turn up thereafter, the wife issued Ex. P-10 notice which had been acknowledged by the husband under Ex.P-11, and the same had not elicited any reply whatever. At the risk of repetition, it may be stated that the husband was fully convinced that his wife had been under the magical influence of " " administered to her on 19-6-979, as evidenced by his letter Ex.P-2 to his mother-in-law. The husband's consent for the wife to be taken to the native place immediately after the order in the writ proceedings, is probable in the circumstances of the case. In such circumstances, it is only the husband who had withdrawn from the company of the wife and, therefore, it is that she is entitled to the relief of restitution of conjugal rights. Hence, both the issues in O.M.S. No. 12 of 1983 have to be answered in favour of the wife.
29. In view of the findings on various issues in both the suits, O.M.S. No. 12 of 1983 filed by the wife is decreed as prayed for, and O.M.S. No. 9 of 1985 filed by the husband is dismissed. No costs.