1. NAIMUDDIN, J.-The petitioner Francisco Xavier Pinto filed a petition under section 10 of the Divorce Act, 1869 against his wife Julia Pinto, respondent and Phillip D' Silva co-respondent for a decree of dissolution of marriage on the ground of adultery committed by the respondent with the co- respondent between September, 1968 and the middle of December, 1968 in Karachi and thereafter in Chittagong and again in Karachi in the circumstances noticed hereinafter. The petitioner has also claimed damages in the sum of Rs. 2,000.
2. The respondent contested the petition and denied the allegations of adultery. So did the co- respondent.
3. Mr. B. G. N. Qazi the then District Judge, Karachi by the judgment dated 21-4-1975 pronounced a decree nisi for, dissolution of the marriage of the petitioner with the respondent, subject to confirmation by this Court under section 17 of the Divorce Act, 1869. Accordingly, the case has come up for our consideration.
4. The petitioner's case was that: during the period between September, 1968 and middle of December 1968 the respondent committed adultery with the co-respondent in Karachi and thereafter the co-respondent left for Chittagong and the respondent followed him there on or about 26-7-1969 and stayed with him for about 10 days as learnt by him from 'a telegram sent by one Rozario. On her return from Chittagong the petitioner demanded her explanation and she admitted to have gone to Chittagong. The petitioner further alleged that on return of the co- respondent to Karachi the respondent again started meeting the co-respondent and they were found together at various places in Karachi besides they also met in secret places. In order to have more time for adultery with the co-respondent, the respondent managed to get service in local clinic. She put up herself purposely on night duties. Besides the respondent also used to come late in the day. He further alleged that the respondent used to write love letters to the co-respondent that show that the respondent was in adultery with the co-respondent. She completely neglected the household affairs as well as the children.
5. The respondent in her written statement denied the allegation of adultery with the co-respondent but admitted that the co-respondent was in Chittagong for a period of about 10 months in the year 1968-69 and stated that she had gone there to seek his help and other Goanese living in Chittagong and apprising the co-respondent, who is the best and the fast friend of the petitioner and to seek his help to get the petitioner's ways mended. She denied that she stayed with the co- respondent at Chittagong but pleaded that she had stayed with the family of Rozario consisting of his wife and children. She counter charged the petitioner committing adultery with Leuiza Azveda, Verenica D'Souza, and Prescia D'Souza. She further pleaded that she was compelled to adopt the service in hospital as a nurse due to' indifferent and objectionable conduct and attitude of the petitioner towards her. Regarding love letters she denied that the letters were ever voluntarily written by the respondent. She, however, stated that some writings were got written by the petitioner under the threat of life and coercion.
6. The co-respondent, in his written statement, also denied the allegation of adultery and pleaded that he and the petitioner were on visiting terms and further pleaded that the petitioner fell prey to the society of other woman and indulged in adultery and had no interest in the respondent and her children. He, however, admitted that be had , taken a job on contract in December, 1968 in the then East Pakistan (Now Bangla Desh) and alleged that the respondent having been turned out of the house of the petitioner, bad left Karachi for Chittagong in the hope to meet him and find co- operation of other well wishers and common friends of the petitioner. He stated that she had taken up residence with one Rozario and his family and the said Rozario had written letters and bad sent telegram to the petitioner and on petitioner's undertaking to treat the respondent properly, she bad returned to Karachi. He also stated that he was employed as a musician in a Night Club, and that he had met the respondent at the residence of the petitioner only and denied the allegation of secret meetings with the respondent. He also denied that he had anything to do with the night duty of the respondent in the local hospital and claimed that he had no access to or concern with the clinic at all.
7. In a petition for dissolution of the marriage on the ground of adultery, the burden of proving the fact of adultery on the part of the respondent is thoroughout on the petitioner for it is he who seeks dissolution of the, marriage on that ground.
8. In this country, as in England or India, in nearly every case, the fact of adultery is proved by confessions or inferred from circumstances which by fair inference lead to that necessary conclusion for the direct evidence of adultery is rare. It may indeed, be disbelieved because it purports to be direct evidence (See : Sopwith v. Sopwith ((1859) 4 S. W. & Tr. 243) and Alexander v.
9. Alexander andl Amose (1860 S. W. & Tr. 95) but it is otherwise where, suspicions having been aroused, the innocent party watches for proof of adultery Douglas v. Douglas ((1950) 2 All E R 748).
10. The fact of adultery has to be proved to the satisfaction of the Court, i.e. On a preponderance of probability as laid down by the House of Lords in Blyth v. Blyth ((1966) 1 All E R 524 .).
11. At this stage we would like to refer to two more judgments of the Lahore High Court and the erstwhile High Court of West Pakistan (Lahore Bench) in Felix Edward Geyer v. M. M. Geyer and another (AIR 1949 Lab. 38) and in Isac Nazirullah v. Dr. Dorothy and others (PLD 1967 Lab. 731) respectively: In the first case it was held by Bbandari, J. As follows :-- "But it is not necessary that there should .Be direct evidence of adultery before a marriage can be dissolved. Direct evidence of this form of crime against society is rarely available. Association coupled with opportunity and evidence of illicit affection or familiarity creates at inference upon which the Court can act. In Gibbs v. Gibbs, 55 All. 597 Young, J. Expressed the view that in divorce cases it is not necessary to prove the direct fact of adultery; nor is it necessary to prove the existence of guilty affection in ever case. Adultery may legitimately be inferred from evidence of opportunity, where the circumstances are such as would lead a reasonable and just person to the conclusion that adultery had been committed.
12. In the second case of Anwarul Huq, J. (as he then vas) after referring to the first case amongst others, observed "From the authorities cited above it is clear that in order to prove a charge of adultery, it is not necessary to lead direct evidence, as it is not always easy to have such evidence available. Accordingly, the charge can be proved by circumstantial evidence suggesting a guilty association and illicit affection between the wife and a stranger and the presence of such opportunities 'as would give rise to a reasonable presumption that intercourse might have taken place."
13. Accordingly, there must be proof of disposition or inclination an opportunity for committing adultery but the conjunction of strong inclination with evidence of opportunity does not lead to an irrebuttable presumption that adultery has been committed. So was ruled in Farnham v. Farnham (( 1:925) 133 L T 320) in the following words; "From opportunities alone no inference of misconduct can fairly be drawn unless the conduct of the parties prior, contemporaneous or subsequent justifies the inference that such feelings existed between the parties that opportunities if given would be used for misconduct."
14. Reference may also be had to the judgment of this Court in Mrs. Anges Jacintha Irene v. Augustus Simon D'Souza (PLD 1975 Kar. 747) wherein at page 754, Dorab Patel, J. (now Judge of Supreme Court) observed: "And further, according to the passage quoted, the inference of adultery cannot be drawn from evidence of association coupled with opportunity, but from such evidence together with evidence of illicit affection, or, illicit familiarity. 'Illicit' is a strong word. However, as to what is illicit affection and what is illicit familiarity must depend on the circumstances of each case, and these circum--stances necessarily include the manners and habits of the parties concerned and of the community to which they belong and in which they live".
15. But we must however, caution that there are cases where association coupled with opportunity alone may lead to inference of commission of an act of adultery acceptable to a reasonable man and may satisfy c the requirement of proof. Such cases are generally known as hotel cases. Take a case where a man or woman having a home in the city or town goes to stay in a hotel and locks himself or herself up in a room with a person of opposite sex, not his wife or her, husband. Any reasonable man would draw a conclusion that such a stay was for the purpose of adultery for they had opportunity. Such a stay could not have been to bestow upon each other platonic love for it needs no privacy. The case would be different and may need consideration of other circumstances where a man or woman as a tourist or otherwise goes to another town or country and stays in a hotel with stranger of opposite sex and the explanation given is that it was with a view to minimise the hotel charges that they had jointly stayed in a double room hotel. Here pertinently, we may refer to an English Decision of the Court of Appeal Blum v. Blwn ((1963) 107 Soljo 512). In this case the husband booked double room at hotel, and went there with a woman not his wife, husband's explanation was not accepted and it was held that adultery was proved. And also to Woolf v. Woolf (1931 P D 134) where in the petitioner's case was that her husband had spent a couple of nights with an unknown woman in a room in a hotel, and she had produced hotel register and a chamber maid in support of the stay. The Court of Appeal on these facts and evidence alone found the husband guilty of adultery. This case was duly noticed by the Full Bench in Mrs. Anges Jacintha Irene's case and was not dissented from.
16. We may also refer to a passage from Halsbury's Laws of England, Vol. 13 (Fourth Edition), page 27 paragraph 565, which reads as follows;--- "Hotel cases.-The Court used to look with some particular suspicion on cases where the only evidence of adultery amounted to a stay in a hotel by the respondent and an unknown person of the opposite sex. Where there is no background of any adulterous association, the Court is not always prepared to make a finding of adultery where a hotel bill is produced and a witness from the hotel is called to say that a man and a woman were in a bedroom together, but it will usually do so (emphasis' is ours) even if the identity of the man or woman with whom adultery - is alleged to, have been committed is not known. But it must still be roved that one of the parties present was and the other was not one o the spouses."
17. In the light of the principles stated above we would now proceed to examine the evidence led by the parties to come to some conclusion.
18. The petitioner in support of his claim examined himself and Mrs. Dalgago (Exh. 6) Francisco D'Souza Exh. 7 and Dass (Exh. 8).
19. The petitioner deposed to the facts stated in the petition and also produced 10 photographs (Exhs.
20. 3/1 to 3/10), nine of which show the respondent walking in the Company of the co-respondent and also produced (four amorous letters (Exhs. 4/1 to 4/4), addressed by the respondent to the co- respondent which we would discuss a little later.
21. Mrs. Dalgago deposed that the petitioner was the god-father of her daughter and he used to visit her house and that she saw Mrs. Pinto walking hand in hand and in intimate manner with the co- respondent and that she looked after the children of the petitioner during day time for sometime as the respondent was indifferent to them as well as the children. She further deposed that when the co-respondent was at Chittagong the respondent also went there. In cross-examination she stated that in her society male and female do visit each other's house without any objection but she denied the suggestion that in her society the married woman do go out for walking with strangers. She further stated that she learnt about the visit of the respondent to Chittagong from the respondent herself as she had stated that she was going there because the co-respondent was there.
22. Mrs. Franscisco Desouza deposed that in July, 1969 the respondent had gone to Chittagong and she had seen the love letters written by the respon--dent to the co-respondent and she had also seen the respondent and the co-respondent thousand times going together at various places and that respondent used to work as a nurse and used to get night duties purposely and she saw both the respondent and the co-respondent going hand in hand on several occasions. According to her a married woman does not ordinarily go in such manner with a stranger unless they are on terms of criminal intimacy. He denied the suggestion that the respondent had taken the job of a nurse on account of maltreatment of the petitioner.
23. Das deposed that he is a ward boy in Anklesaria Hospital, Karachi were the respondent worked as aid nurse. She served there for about 2 years and left the service in May or June, 1972, He recognized the co-respondent in the Court and stated that the co-respondent used to bring the respondent to the hospital at night and then take her away from there in the morning every day, and that the co-respondent had told him and others that he was her husband, and he saw them coming hand in hand. He also saw them kissing each other when they parted in the evening. He admitted that he did not inform any one in the Hospital regarding the kissing of respondent by the co-respondent. Significantly, he was not questioned with regard to the statement made by him that the co-respondent had told him and others that he was her husband.
24. In rebuttal the respondent examined herself and the co-respondent himself and none else. The respondent denied the allegation of adultery and deposed about the ill-treatment of her by the petitioner and also spoke of his mixing with women of ill repute. She further stated that she wanted help of co-respondent because the petitioner had set up bad characters against her and used to threaten her. She, however, admitted the photographs (Exhs. 3/1 to 3/1 ), in 9 of which the co- respondent appears with her and stated that these photographs were taken while she was going to work with him. She also admitted the writing of the four love letters addressed to co-- respondent. She, however, stated that these were written under the threat of the petitioner.
25. The co-respondent denied that he committed adultery with the respon--dent or that the respondent visited him in Chittagong or stayed with him. He, however, admitted that he was present in the photographs and he also admitted that he had escorted her to the Hospital once or twice. He also admitted that the respondent had written the love letters (Exh. 4/1 to . Exh. 4/4) to him.
26. Although there is no direct evidence of adultery as it is rarely available, we, however, have four letters (Exhs. 4/1 to 4/4) admittedly addressed by the respondent to the co-respondent during the year 1968-69. In all these letters the co-respondent is addressed as 'My darling love', 'Honey Sweet heart', 'Dear sweet heart Honey, Darling Love! In one of these letters she called the co-respondent as 'unfaithful lover'. In Exh, 4/1 she informed the co-respondent that she had told the petitioner that she was responsible for herself. In Exh. 4/2 she stated that she had told the petitioner that she would do whatever she liked and that he might do whatever he liked. Then in these letters she wrote to the co-respondent that she had thought twice before falling in love with him and that she would not give him up even at the cost of her life. Then she assured him that she was true to him as h p was her first choice in life. These letters are full of expression showing her amorous feelings for the co-respondent and we need not repeat them here. One of these letters shows that the co- respondent was also writing letters to the respondent for in Exh. 4/ 1 she informed the co- respondent that 'Pinto got nothing of your love letter you need not worry'.
27. Her defence that she was forced by the petitioner to write these letters under the threat of life appears to be quite false for these letters were written on different occasions and in different ink and the contents thereof appear to be spontaneous with one common feature that the letters depict the respondent's deep emotional involvement with the co-respondent, which coupled with the other corroborative evidence on record tends to show criminal intimacy or illicit relations.
28. It is admitted fact that after the co-respondent bad gone to the then East Pakistan, the respondent followed him and one Rozario informed the petitioner by telegram about the presence of the respondent in Chittagong. Her claim that she had not met the co-respondent in Chittagong when he was admittedly there and she was in correspondence with him is palpably false in the face of her own admission made in the cross-examination that she had gone to Chittagong to meet the co-respondent and seek his help by requesting him to go to India and meet her mother, and a different plea in the written statement that she had gone to Chittagong to seek the help of the co- respondent, who was a common friend, by using his influence over the petitioner in persuading the latter to mend his ways, which plea too was false for it is in evidence that the petitioner and the respondent had several relations and common friends in Karachi and in their presence it was not at all necessary to take the trouble of travelling over thousand miles to seek the help of the co- respondent. The purpose, therefore, was obviously the Company of the co-respondent for immoral and illegal objects. The co-respondent had also denied in his written statement any meeting or secret meetings with the respondent except the meetings with the respondent in the petitioner's house in his presence but when he was confronted in his cross---examination with the photographs (Exhs. 3/1 to 3/10) he was forced to admit that he was there, therein with the respondent and the same were taken at various places and he also admitted that the respondent had asked him for escort to the Hospital where she worked which he gave once or twice. This admission also lends support to the statement of Das, a ward boy in Anklesaria Hospital that the co-respondent used to escort the respondent to the hospital every day. This witness had also deposed that he had seen the co-respondent and the respondent many times, kissing each other when they parted in the evening, and that the co-respondent had told him and others that he was the husband of the respondent, which statement has gone unchallenged in the cross-examination of the witness. The facts that the co-respondent was found escorting the respondent to Ankelsaria Hospital, and kissing her in public and declaring himself to be the husband of the respondent, lead us to believe particularly viewed in the background of the amorous letters admittedly written by the respondent to the co-respondent that he was on illicit terms with the respondent.
29. We may also mention that the respondent has filed an application in this Court praying for confirmation of the decree nisi under consideration. She has also filed an affidavit in support of the application stating that it is not possible for the respondent to think of living with the petitioner because of his strange habits. Such a plea is of no consequence for in case of dissolution of the marriage under section 10 of the Divorce Act, 1869 or for confirmation of decree nisi what the Court bas to consider is the fact whether the wife has committed adultery or rot and no other matter.
30. Even if it is held that the application impliedly amounts to admission of the fact of adultery, the Court cannot generally act thereon without corroborative evidence as a Court is to guard itself against collusive proceedings for under the provisions of E section 13 of the Divorce Act, 1869 a duty is cast upon the-Court to dismiss the petition if the Court finds that the petition is presented or prosecuted in collusion with either of the respondents. However, when we consider the application in the circumstances of this case we do not find it to have been made in collusion with the petitioner for the petition was fully contested by the respondent and the co-respondent.
31. For all these reasons we feel no hesitation in coming to the conclusion that the respondent committed adultery with the co-respondent and therefore, the petitioner is entitled to a decree for dissolution of the marriage. The co-respondent has not questioned the damages awarded against him in the decree under consideration. Accordingly, we make the decree nisi absolute.
32. S. A. H.Decree nisi made absolute.