Adultery case
In Kumbakonam, Mahalingam Pillai had
filed a petition before the Sub-Court, for dissolution of marriage with his
wife Amsavalli on the ground that she eloped with one Saravana Pillai in 1952
and she openly lead an immoral life.
At the time of filing this
petition the Marriage Act called Madras Act VI of 1949 was in force. This petition
was dismissed by the Sub-Court on the ground that he had not proved the
allegations.
Hence, he filed an appeal before
the High Court of Madras in the year 1956. By that time, a new Marriage Act
called the Central Act XXV of 1955 was came into force. This new Act repealed
and superseded the old Act.
Under the Old Act of 1949, a husband is entitled to dissoulution of
marriage on the ground that the wife is the concubine of other man. But under
the New Act of 1955 this ground of concubinage or adultery is not the ground for
dissolution of marriage but considered as a ground for Divorce only.
In law, in as much as an appeal is
a continuation of the suit or petition. Hence, the party would be entitled to
invoke the benefits of the new Act.
The term “concubine” has a definite
meaning in the langauge of India and of Europe. Concubine is a recognised
status below that of a wife and above that of a harlot.
The two words, ‘com’ meaning ‘with;
and ‘cubere’ meanign ‘to lie’. It connotes a single woman consenting to
unlawfully cohabit with a man as if they are husband and wife. In modern terms,
it is usually exprssed ‘his kept mistress’.
In the New English Dictionary on
Historical Principles, edited by James Murrage Volume II page 777, the
definition of concubine is given as a woman who cohabits with a man without
being his wife. A kept mistress.
In Ballanatine’s ‘Law Dictionary’
1948 Edition (The Lawyer’s Co-operative Publishing Co, Rochester, New York),
concubinage is defined as the state of a woman who sustains a relation
involving continuous and regular illicit intercourse with a man to whom she is
not a wife. Such a relation need not exist for any considerable period of time.
Concubine is a woman who habitually
assumes and exercises towards a man not her husband the rights and privileges
which belong to the matrimonial relation. The wife, without a title. What is
ordinarilu called a mistress. Concubinage is the act or practice of cohabiting
in sexual intercourse without the authority of law or legal marriage.
In the American Jurisprudence,
Volume 35 (Published by the Lawyer’s Co-operative Publishing Co, Rochester, New
York and Bancroft Whitney Co, San Francisco, California) Section 9, it is stated:
Although concubinage was in ancient times recognised in certain countries as a
species of marriage, it is not so regarded in Christendom. Marriage differs
from concubinage in that the intent in the former is to agree to assume the
relationship of husband and wife, whereas intent in the later is to assume no
such relationship. Tedder v. Tedder 108 S.C.271.
An historical account of
concubinage in the West and the East is to be found in Hasting’s “Encyclopaedia
of Religion and Ethics” Volume 3 pages 809 to 820. The distinction between a
wife and concubine and harlot is that a concubine is below that of a harlot and
that in that status the woman lacks the permanent gurantees of married life is
well brought out in the quotation from Shakespear in Doctor Johnson’s
Dictionary of English Language, Volue 1, (1806):
I know I am too mean to be your
Queen:
And yet too good to be your concubine.
But at the same time a concubine
is to be distinquished from a harlot. A harlot solicits to immorality, a concucbine
is reserved by one man.
Under the Hindu Law:
This status of a concubine has a recognised position in
Hindu Law and in fact entitles a woman to certain maintenance rights, provided
she fulfills certain conditions like that she must be exclusively and
continuously kept by her paramour; and the connection should not be auldterious
and she should maintain sexual fidelity towards her paramour. Such a woman is
called ‘avaruddha-stri.’
In this case, the husband
Mahalingam Pillai found her wife in Saravanam Pillai’s house on one occasion
found sweeping the house of Saravana Pillai. But Saravana Pillai was living with
his wife and daughters, sisters and niece in the same house. Therefore the
allegation of Mahalingam Pillai fails.
Prostitute:
A prostitute is a female given to
indiscrimate lewdness; a strumpest. Prostitute is the ‘pa pple of prostitu ere’
meaning to place before, expose publicly offer for sale and is derived from
Prostatuere-ut-stature re, set up place, offer for sale. A a verb, its definition
is to offer freely to a lewd use, or to indiscriminate lewdness. As an adjective,
it means openly devoted to lewdness, sold to wickedness or infamous practices. A
female may live in a state of illicit carnal intercourse with a man for years
without becoming a prostitute.
A woman is not a prostitute who
indulges in illicit sexual intercourse with only one man; hence a man cannot be
guilty of enticing a female away from her home for the purpose of prostitution.
Prostitution is sometimes defined to indiscriminate sexual intercourse for
gain.
When a woman rests content with one
lover for years though she may have changed her lovers at intervals of some
years, she is not a public prostitute. (Municipal Committee of Delhi v. Moti
John, (1930) 123 I.C. 536.
In an Americal case case,
prostitution in its most general sense is said to mean the setting of one’s
self for sale or of devoting to infamous purposes what is in one’s power. It is
the practice of a female offering her body to an indiscriminate sexual intercourse
with men.
The French administration arrange
disorderly women under two heads, femmes debauchees and prostitutes.
The former is the kind of kept mistress. The prostitute has been more particularly
described by French writers as the woman who abjures society, repudiates its
laws, and forfeits all claim upon it.
The position has been tersely put
by Dr. Samuel Johnson in his “Dictionary of the English Language” (1806) Vol.II
by defining a prostitute as a hireling; a mercenary who is set to sale.
In Sanskrit & Tamil Literature:
In Sanskrit literature, wherein these public women are called
‘ganckaghara (house of ill-fame)’ and in Tamil literature as ‘Vilai-mathu’
woman whose services are purchased.
Kalidasa in his “Megaduta”
mentions three classes: panya-stri, ahbisarika, and vesya. (see: Ratilal v.
Metha). The Sanskrit writers draw a sharp distinction between a varinadasi or
harlot, bhujishia or kept-mistress, ovaruddha or secondary wife and Swairini,
an adulteress.
The term ‘Living in Adultery’:
The term adultery is derived from the French verb ‘adultereare’
which stands for ‘ad adaltereare, viz. alter from other or change to something
different. In 17th centuary
the present word ‘adulterer’ was only spelt as ‘adulter’. In Funk and Wagnall’s
New Standard Dictionary of the English Language Vol.II, the defition of ‘adultery’
is given as the sexual intercourse of two persons either of whom is married to
a third person. It is called a ‘double adultery’ where both are married and ‘single
adultery’ where is married.
In Ballantine’s Law Dictionary, the definition given is at
common law, adultery consists of sexual intercourse by men, married or single,
with a married woman, not his wife.
Adultery is nowhere defined either
in the English or Indian Divorce Act. But its meanign in Divorce Law is beyond
doubt and is understodd to mean the willing sexual intercourse between a husband
or wife with on eof he opposite sex while the marriage subsists.
In adultery the act of intercourse
must be voluntary but if it is involuntary it is rape.
Living in Adultery:
There is a distinction between ‘committing adultery’ and
living in adultery’. Living in adultery means, following in a course of adulterous
conduct more or less continues. A single act of adultery cannot be considered
as living in adultery. The words ‘living in adultery’ are merely an indication
of the principle that occasional lapses from virtue are not a sufficient reason.
Proof of Adultery:
Adultery may be proved in various ways. Direct proof is very
rare and even if produced the Court will look upon it with disfavour, as it is
highly improbable that any person could be a witness to such acts, as they are
generally performed with the utmost of secrecy. (Simon Lakra v. Bakla, ILR
(1932) 11 Pat. 627. In fact direct
evidence would clearly be required to be corroborated by circumstantial
evidence.
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 aduterly may be inferred
as a necessary conclusion.
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