Anantanarayanan, C.J.@mdashThis appeal has been instituted by Baby Ammal, the respondent, from the judgment and decree of Venkatadri J in
Varadarajulu Naidu v. Baby Ammal (1964) 2 M.L.J. 187. The text of the report itself provides all the essential facts of the appeal. It is sufficient
for us to observe, very tersely, that the single issue of fact which is involved in the entire proceeding is, whether the appellant, Baby Ammal, was
living in adultery with one N.S. Mani, which would admittedly clothe her husband, Varadarajulu Naidu with a right to obtain a dissolution of the
marriage on the ground of adultery, under S. 13(1) of Act 25 of 1955. This issue is entirely an issue of fact, dependent on the merits and the
probabilities of the evidence. The learned Judge Venkatadri J. has referred to certain decisions of English courts wherein the broad principles of
proof of this matrimonial offence have been stated, such as Davis v. Davis (1950) 1 A.E.R. 40, Getty v. Getty (1907) L.R. 17 Pro. Div. 334, and
Riches v. Riches (35) T.L.R. 141, and the dicta of Denning L.J. in Miller v. Ministee of Pensions (1947) 2. A.E.R. 3721 It is not necessary for us
to recapitulate these passages or to proceed into any further discussion of the legal principles themselves they are well settled and this area of the
law has suffered and undergone very little alteration, in the course of the proceeding half century or so. To put it very briefly though the proceeding
is civil in character, nevertheless proof of adultery is in a certain sense, in a peculiar category of the facts, which have to be established in order to
obtain relief. As Denning L.J. observed, the degree of proof ""need not reach certainty, but it must carry a high degree of probability"". The language
of Sir Williams Scott in a very early decision was that ""the circumstances must be such as would lead the guarded discretion of a reasonable and
justman to the conclusion"". These English decisions usually stress the cumulative effect of the circumstances of the matter, for the simple reason that
adultery can very rarely, if ever, be proved by direct evidence, it is generally established by circumstantial evidence, and the rules and principles
governing consideration circumstantial evidence, will broadly apply to proof of this particular fact as well.
2. Having said all this, we may very briefly refer to the major probabilities of the evidence upon, which we are fully convinced that adultery was
established in this case to indeed a high degree of certainty. One very significant criterion which had to be kept in mind, in judging the evidence, is
the social grade in which the alleged offence is said have occurred and the probabilities connected therewith. As is well known, the social
characteristics and norms of behaviour vary from country to country and we must be concerned with the probabilities in relation to our own
country, the social grade of the parties, and the kind of conduct which would be probable or likely in such a stratum of society (Vide Subbarama
Reddiar Vs. Saraswathi Ammal, .
3. There is disinterested oral evidence in this case, as detailed by the learned Judge, to prove that the appellant left the respondent, or that she at
any rate parted from him, and lived in her village with her mother for some time, without making any attempt to resume matrimonial living, and was
later living with one N.S. Mani in Washermenpet of the city. As this locality has nothing to do either with the village of the appellant and her
mother, or with the village of her husband, respondent, learned counsel for the appellant is constrained to concede that, if the facts did establish
that the appellant was living with N.S. Mani in one house in Washermenpet, that is virtually overwhelming proof of adulterous living or illicit
intimacy. There is no other relationship of any kind between N.S. Mani and the appellant, and no conceivable reason why the appellant should be
living with this man, unless the relationship between them was sexual in character.
4. Learned counsel for the appellant has stressed that the oral evidence relied on by the learned Judge such as the testimonies of P. Ws. 3, 5 and
6, though seemingly disinterested and clear, cannot be accepted, because in each of these cases some nexus has at least been suggested, between
these persons and the police authorities. The main defence was that a police constable who was interested in the husband, or distantly related to
him, was the moving spirit, who must have engineered the testimonies of these witnesses, This argument does not commend itself to us, and indeed
it does not withstand a critical scrutiny. Even conceding that there was some police constable who was interested in helping the respondent, it is
very difficult for us to imagine that merely on a word from this man, totally disinterested witnesses such as P.W. 3, 5 and 6 would come forward to
commit perjury, in order to malign the repute of a chaste Hindu wife. We do feel that most normal people will be reluctant to embark on such a
course of perjury which, even according to the lowest grades of morality, will also be counted as a dreadful sin since it is calculated to injure the
chastity of a wife.
5. We have carefully gone through the evidence and we entirely agree with the learned Judge in his appreciation of the testimonies of these
witnesses. Actually, though certain difficulties such as the ability of these people to recollect the identities Baby Ammal and N.S. Mani were
stressed, the evidence leaves us in no doubt that these witnesses are speaking the truth, and that it was within the testimony of their senses that
Baby Ammal and N.S. Mani were living together in that house in Washermenpet. We need not point out that the true perspective of approach, in
stressing apparently disinterested and independent testimony, should be for the court to ask itself whether there are any grounds for rejecting such
a testimony, given on oath, it would not be proper, to suspect it at once, merely because there is some suggestion in cross-examination that the
witnesses had something to do with the police authorities, at some time or other.
6. Two other matters appear to have figured some what largely in the case. One is the record on one occasion, when N.S. Mani had to be taken
to the police station for interrogation in connection with a charge under the Prohibition Act. The record appears to have been accepted by the
court, which was satisfied about its genuineness. We do not have any reason either to think otherwise. That record does show, if it is genuine, that
a certain Baby Ammal was then stated to be the wife of this N.S. Mani and an entry to that effect has been made in the record; probably, she was
one of the persons who appeared on behalf of the suspect or prisoner, at the police station. But we agree with the learned counsel for the appellant
that the probative value of this record is very slight.
7. The other piece of testimony is a photograph, both the positive and negative having been produced at the trial. In disputably, this is an authentic
photograph of the appellant and N.S. Mani appearing together. We find from the judgment of the learned trial judge that he rejected that
photograph, deeming it to be a fake composition made from two separate authentic photographs, merely because of some faint dividing line which
he perceived in the negative. We have closely examined the photograph and the negative, and both show one feature which seems to have escaped
the attention of the learned trial judge, or which at least has been under valued by him, with regard to its significance. This is that not merely are
N.S. Mani and the appellant side by side in this photograph, but the hand of N.S. Mani is resting on the further shoulder of the appellant, in a very
unmistakable way. We find it very difficult to imagine that this hand could have been separately photographed and then also super-imposed, so as
to appear on the shoulder of the girl. In any event, there are no grounds on which we can reasonably conclude that the photograph is necessarily a
fake one. Actually, some such unfortunate impression seems to have been largely responsible for the rejection of the entire oral evidence, which
was otherwise disinterested and credible, by the learned trial Judge. At the highest for the appellant, all that can be said is that this photograph need
not be acted upon, as a conclusive piece of evidence in regard to her alleged adultery with N.S. Mani.
8. On the whole, we are thoroughly satisfied that on the facts and probabilities, the learned Judge Venkatadri J. was justified in coming to the
conclusion that, to a high degree of certainty, it was established that the appellant and N.S. Mani were living together in adultery at Washermenpet,
during the period in question. It necessarily follows that the marriage ought to be dissolved on the ground shown, and that the appeal must fail. It is
accordingly dismissed. No order as to costs. C.M.A. No. 109 of 1963--We are not satisfied that any ground has been shown for enhancing the
maintenance ordered by the court below. The civil miscellaneous appeal is dismissed. No costs.
