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Judgment
Balasubrahmanyan, J.—In this matrimonial case, a husband accused his wife of living in adultery with her own foster father. He asked for a
divorce on that ground. The trial court granted him a decree. But the district court in appeal reversed it. In this second appeal the same outrageous
allegation is again made by the husband against his wife. Fornication between a foster parent and his ward is not exactly incestuous. Yet it is too
revolting to the human mind to be of frequent occurrence even in imaginative fiction. There is only one modern classic I know of in this genre :
Nabakoy''s ""Lolita"" Lolita�by Vladimir Nabakov. But even in that literary masterpiece, the principal characters were quite abnormal. One was a
self-confessed old reprobate ; the other was a teasing teenage nymphet. Such an unholy combination must be extremely rare in real life, almost as
infrequent as rank incest. I do not rule out cases where individuals may practise sex behind closed shutters, all the while masquerading outside
under an assumed consanguinity. The possibility of such cases, or, rather, the prepossession in one''s mind of their existence, might render difficult
the task of distinguishing a genuine relationship from the bogus. But all this must only further underline the caution that we should not countenance
charges of illicit sexual intercourse excepting on the basis of strict proof.
The trial court observed in this case that direct evidence of adultery is well-nigh impossible. So it is, with most murders too. But that does not
mean that a court of law can grant a divorce for the mere asking, any more than it can send a man to the gallows on pure suspicion.
The husband in this case had made two bold assertions in his petition for divorce. One was that his wife was having sexual intercourse with her
foster father. The other was that he himself had no sexual intercourse with her and a child born to her was not his, but the foster father''s. He went
into the witness box and gave evidence to this effect. But his own letters addressed to his wife as well as his father-in-law clearly showed that not
only did he sleep with his wife and made her with child but that he had discussed plans for her forthcoming seemantham. In the teeth of these letters
he nevertheless had the temerity to tell the court that he was innocent of carnal knowledge of his wife and suspected that the child was not his. Both
the trial court and the first appellate court rightly disbelieved this part of his evidence. Nevertheless, this did not prevent the trial court from holding,
on the basis of what it recorded as the ""general background of life between the parties"" that the wife had committed adultery with her foster father.
As to the family background there was hardly any dispute between the parties. The wife''s foster parents were an aged childless Brahmin couple
in Madurai. The foster mother was not in the best of health as she had innumerable abortions. The girl had come into their household in 1962
having lost her father, after her widowed mother had left her to reside with some relations. From her early teenage, the girl was living in the same
house with her foster parents. It was the foster father who got this girl a teaching job in a local school at Madurai. It was he who came forward to
arrange for her marriage. It was he who paid the dowry to the bridegroom and undertook the wedding expenses. The foster father was in his late
fifties when the marriage took place.
The trial court, however, took into note of a letter produced by the husband at the trial which the court regarded as containing a confession by
the wife that she was committing adultery with her foster father. This was an inland letter without a post mark, written in the hand of the wife. The
husband''s case was that the wife had written that letter and had sealed it and had given it for mailing, but he got it intercepted when a neighbour''s
urchin was about to take it to the pillar box. The wife admitted in her evidence from the witness box that the letter was written by her. But she said
that she was not in full control of her will when she wrote it. She stated that her husband had given her some veeboothi and then commanded her to
write the letter to his own dictation. She asserted that the contents of the letter were untrue. The trial court, however, rejected her evidence. It
accepted the husband''s testimony to the effect that he had nothing to do with the composition of the letter and that it was done voluntarily by the
wife and at her own will. The court rejected the contention put forward on behalf of the wife that she wrote it in a state of automatism. The court
wondered as to whether Veeboothi or sacred ash could bring about this result.
The appellate court, however, accepted the endure of the wife. It said that the letter could not have been written voluntarily, although it was in
her own hand. The appellate court observed that there was no occasion whatever for the wife writing such a letter to her foster parents when all
the while she has been living with the foster father even after the marriage and only waiting for her husband to get a transfer to Madurai to come
and live with her. The appellate court rejected the evidence of the husband, having found that he had not told the truth as respects his own
relationship with his wife after the marriage.
In this understanding of the evidence in one way by the trial court and the other by the the appellate court, this case has really to be decided on
the conventional formula as to whether mere was any evidence to support the finding of the appellate court. I am satisfied that not only was there
ample evidence in support of the conclusion of the appellate court, but the trial court had no evidence whatever to have decided the case the other
way about. As I earlier pointed out, the trial court relied heavily on its reading of what the background circumstances of this case were. It seems to
me that the trial court did not draw the proper legal inference but jumped to irrational conclusion on the question of adultery by the mere fact of the
wife living under the same roof with her foster father. At this rate, I wonder whether it would not be possible for any court to infer improprieties in
the relationship between persons living under the same roof as brother and sister, father and daughter, and the like. As I said before, incest is so
abhorrent to mankind that one should expect the strongest proof for concluding that it exists in any given case. Although the relationship between a
foster parent and a foster daughter is not based on consanguinity, any sexual connection between the two is just as bad as incest. For this kind of
relationship to be known to exist in any given case the court would have to have the strongest and the most cogent and convincing pieces of
evidence to come to a conclusion that there was any such impropriety. From this standard, the trial court''s conclusion was not only a wrong guess,
but wholly heartless and perverse.
The appellate court, on the other hand, had drawn the correct inference from the facts. It rightly rejected the evidence of the husband as untrue,
placing reliance on the testimony on the side of the wife as acceptable especially when not only the aged foster father but also the ailing foster
mother had come into the witness box and faced the cross-examination.
Learned counsel for the husband then sought to put forward a legal submission on the basis of S. 13A of the Hindu Marriage Act, 1956. This
section was introduced by Amending Act 68 of 1976. The test of the section is as follows:�
13A. Alternate relief in divorce proceedings�In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce
except in so far as the petition is founded on the grounds mentioned in Cl.(ii), (vi), and (vii) of sub-S.(1) of S. 13, the court may, if it considers it
just to do having regard to the circumstances of the case, pass instead a decree or for judicial separation.
Learned counsel invoked this new provision and urged me to pass a decree for judicial separation as the proper one in the circumstances of this
case. I think the request of the learned counsel is based on a misconception of S. 13A of the Act. The crucial word in the section is ""instead"". This
means that for a court to act under this section the court must be in a position to hold that the petitioner is entitled to a divorce, but ''instead'' of
granting a decree for divorce, a decree for judicial separation might be made as the preferred way of disposal of the case. The section does not
mean that where the petitioner has completely failed to make out any case, the court can even then simply present him with a decree for judicial
separation, as if it were some consolation prize.
In this case, I have held that the appellate court was quite justified, on the evidence on record, in rejecting the ground put forward by the
husband for the grant of divorce. These findings therefore, rule out the application of S. 13A.
Learned counsel, however, laid stress on the words ""having regard to the circumstances of the case"" occurring in S. 13A, and said that these
circumstances are present in this case. I hold that these words do not operate and are not intended to operate in the void. As I earlier pointed out,
the court must first be in a position to uphold the grounds for divorce urged by the petitioner, in order to consider the feasibility of passing a mere
decree for judicial separation ""having regard to the circumstances of the case"". The plea of the husband on the basis of S. 13A has to be rejected,
not only because of absence of circumstances which are indicative of its application, but also because the section itself does not, and cannot, come
into play in this case. Before ending the matter with the the formal words of disposal of the second appeal, I think I should remark on the way in
which both the courts below had approached the matter in issue before them although each differed from the other in its ultimate conclusion. Here
was a case where a husband was accusing his wife of a heinous matrimonial deviation in a way which would outrage civilized people''s sensibilities
on prohibited degrees of sex relationship. There is no endure, however, that either court was scandalised by the nature of the case. Their
judgments give the impression that they have dealt with the controversy in this petition as yet another addition to the statistics of their disposals, and
nothing more. They have set down the pleadings, the formulation of the issues ,the discussion of the evidence and the findings under each issue, all
in numbered paragraphs, without any show of concern, very mechanically. It is not known whether they were disturbed at all by the kind of case
which they had to go through and determine. Not one comment was made even about the strangeness of the allegations, the base character of the
testimony and the like. Divorce cases might be on the increase nowadays. And trial of such cases might have almost become a routine, like
promissory note suits. Even so, it seems to me that in the trial and the understanding of these cases, the courts must bring to bear a human
approach. They must hear the cases with their cars as dose to their hearts as to their reasoning faculties. Even the legislature, in drawing up the
statute, has accepted the human approach as the desideratum in the trial of these cases when it laid down that the court will have to try whether the
parties could not be brought together, before proceeding to enter upon an inquiry. The judgments of the courts below do not disclose whether all
attempt in this direction was ever made either at the trial stage or at the stage of first appeal. When the matter came to me in second appeal,
however, my own nature and the mandate of the statute prompted me to find out if the parties could come together without an adjudication by me
of the second appeal. I called not only the husband and the wife to come to court in person but also summoned the foster father. The wife''s
attitude was let bygones be bygones. Even after all the happenings inside the court and outside she was ready to join her husband. The husband,
however, set his face against any settlement and was keen in getting on with the second appeal and obtain a decision from this Court. I have earlier
entered my conclusions on the points arising in the appeal. For the reasons stated therein, I hold that there is no merit in this Civil Miscellaneous
Second Appeal. The order and decree of the lower appellate court are confirmed. The Civil Miscellaneous Second Appeal is dismissed. The
appellant will pay the costs of the respondents.