V. Ganesh vs Maya Sundari

Narayana Pillai, J.—In this appeal by a Hindu husband against the order granting his wife divorce, the question to be considered is what exactly is the import of the word ''bestiality'' as used in Section 13(2) (ii) of the Hindu Marriage Act, 1955. The sub-section reads:-

13 (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,--

(i)..................................................

(ii) that the husband has, since the solemnization of the marriage, been guilty or rape sodomy or bestiality.

The word ''bestiality'' is not defined in the Act. But the above sub-section closely resembles and has ''the same purpose and object in view'' as Section 1 of the English Matrimonial causes Act, 1950, which may now be read:

1.--(i) Subject to the provisions of the next following section, a petition for divorce may be presented to the court either by the husband or the wife on the ground............ and by the wife on the ground that her husband has, since the celebration of the marriage, been guilty of rape sodomy or bestiality.

As there is nothing in the Hindu Marriage Act to show that it was a different meaning that was intended to be given there to the word ''bestiality'', it must have the same shade of meaning as in England as observed in Godhara Borough Municipality Vs. Godhara Electricity Co. Ltd., and The Registrar of Trade Marks Vs. Ashok Chandra Rakhit Ltd., It is well-known that in English law, the word ''bestiality'' means unnatural sex connection with a beast. In Raydon on Divorce, 10th Edition, at page 1777 the model form of pleading for Divorce on charge of bestiality is given thus:

That the respondent has since the celebration of the said marriage committed bestiality. That on the 16th day of October, 19--, in a cowshed at Greenacres Farm, Ullathorne, in the country of Barset, the respondent committed bestiality with a cow.

The meaning appropriate to the context of the word as given in various Dictionaries reads thus:

"a sexual connection between a human being and a brute of the opposite sex" (Black''s Law Dictionary)

"the abominable crime of buggery committed with an animal; i.e. penetration per annum" (Osborn''s Concise Law Dictionary).

"unnatural connexion with a beast" (Murray''s New English Dictionary).

"sexual relations between a human being and a lower animal" (Webster''s New International Dictionary).

"sexual relations between a person and an animal" (Random House Dictionary).

The word ''bestiality'' occurs in Section 13(2) (ii) along with the word ''sodomy'' which is another unnatural sex offence, and that is also not without significance. ''Bestiality'' mentioned in Section 13(2) (ii) of the Hindu Marriage Act is sexual union by a human-being against the order of nature with an animal.

In the present case there is no allegation anywhere in the petition for divorce filed by the wife that the husband had sexual union with an animal. The averments in her petition and evidence are only that the husband was a person with all sorts of idiosyncrasies, that he used to abuse and insult her, falsely impute un-chastity to her and ill-treat her, that he used to drag her from the company of her mother for seclusion in room for satisfying his sexual desires and that thus in every way his conduct was bestial or like that of a brute. It is on these allegations that she charges the husband with bestiality. As the word ''bestiality'' has been used in Section 13(2) (ii) of the Hindu Marriage Act to connote sexual union between a man and an animal and as there is no allegation of such conduct in this case, the charge of bestiality fails and as that is the sole ground on which divorce has been granted by the Court below, the order has to be reversed.

During the hearing of this appeal an endeavour was made to bring about a reconciliation between the parties, but it did not succeed. As all the details thereof have been given in the order we have just passed on C. M. P. 2082 of 1970, the application for permission to amend the petition for divorce as one for judicial separation as well, it is unnecessary to reiterate them here. The wife, who has passed M.Sc. in first class and is now doing research for a Ph.D degree, appears to feel, after two children have been born to her, that a Junior Engineer in Government Service is not a match for her. Suffice it to say that her conduct during the endeavour made for reconciliation was thoroughly unreasonable.

It was submitted by counsel for the wife that even if she was not entitled to get relief by way of divorce u/s 13, she may be granted the lesser relief of judicial separation u/s 10 of the Hindu Marriage Act. The grounds given in Section 13 for divorce and u/s 10 for judicial separation are widely different. The mandate of Section 23 (1) of the Act which reads:

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that--.

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (f) of sub-section (1) of section 10, or in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and

(c) the petition is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

--particularly in the expression "if the court is satisfied......but not otherwise"--is that any relief contemplated by the Act can be granted only on strict proof of the grounds specified in the Act for such relief and on strict compliance of the conditions specified in Section 23.

Counsel for the wife relied upon Bhagwan Singh Sher Singh Arora Vs. Amar Kaur and Another, Avinash Prasad Srivastava Vs. Smt. Chandra Mohini and Another, and Dr. H.T. Vira Reddi Vs. Kistamma, to urge that on a petition for divorce a lesser relief of judicial separation could be granted by the court. In Bhagwan Singh Sher Singh Arora Vs. Amar Kaur and Another, only one act of adultery was proved and that was insufficient to establish that the wife was ''living in adultery'' and therefore the husband was found not entitled to divorce, but the High Court in appeal allowed judicial separation on the ground that it was a lesser relief than the relief prayed for in the petition and was not inconsistent with the prayer for divorce. Adultery is a common ground for divorce and judicial separation. Therefore, when divorce is sought on ground that the wife is living in adultery and stray acts of adultery alone are proved the defendant will not be taken by surprise if judicial separation is pressed on the basis of proved acts of adultery. That is not the case here. Here divorce is sought on ground of ''bestiality'', and bestial treatment and cruelty are sought to be proved. As the proof did not concern any legal ground for divorce and the petition contained no prayer for judicial separation the husband could not be expected to place before court facts to show that the wife was not entitled to judicial separation on ground of cruelty. Further, Section 23 of the Hindu Marriage Act was not considered at all in Bhagwan Singh Sher Singh Arora Vs. Amar Kaur and Another, . In Avinash Prasad Srivastava Vs. Smt. Chandra Mohini and Another, the petition for divorce contained an alternative prayer for judicial separation, and the appellate decree was for divorce. That decision is of no help to the present case where on a simple petition for divorce on ground of bestiality, judicial separation is sought at appellate stage on ground of cruelty.

In Vira Reddi v. Kistamma AIR 1969 Mad 235 the appeal was by the husband from the judgment dismissing his petition for divorce. At the appellate stage prayer was made on his behalf for judicial separation and that was granted. The observations of Ramaprasada Rao, J.

That the petitioner can ask for the lesser relief of judicial separation, though in the first instance divorce was sought, is indisputable, and rightly therefore the learned counsel for the respondent did not demur to the course adopted by the appellant both before Jagadisan, J, who heard the appeal and before us.

and of Ramamurti, J.

In this view, we are not expressing any final opinion as to the jurisdiction of the Court to mould the relief in matrimonial causes by the combined operation of Section 10 and Section 13 read with Section 23 of the Act.

show that the correctness of procedure in granting judicial separation when the prayer in the petition was only for divorce was not disputed by counsel and was assumed by one learned judge who did not refer to Section 23 of the Act but doubted by the other learned Judge who referred to that section.

The two reliefs, divorce and judicial separation, are entirely distinct in character, and the grounds therefor are also entirely different. When the motion is definitely for one of those reliefs it appears to us not proper to grant the other-particularly when the ground on which the latter relief is claimed at a late stage is irrelevant for the relief claimed in the petition--in the face of Section 23 of the Act which warns against granting reliefs without strict compliance with the provisions of the Act. In the result, this appeal is allowed and the petition for divorce is dismissed with costs in both the court.