In matters of nullity and divorce, the court must have adequate proof of the allegations before making a decree. An affidavit alone is not sufficient to prove the mental disorder of a spouse.

Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 21, 24, ORDER 8 RULE 5 - MAINTENANCE PENDENTE LITE - WIFE'S RIGHT TO - FAILURE TO FILE WRITTEN STATEMENT - EFFECT - NULLITY AND DIVORCE - PROOF REQUIRED.
Fact of the Case:

Wife filed an application under section 24 of the Hindu Marriage Act for interim maintenance and expenses of the proceedings in a marriage proceeding initiated by the husband seeking a decree of nullity or divorce on grounds of mental disorder and fraud. The trial court, without deciding the application, made an ex parte decree of nullity and divorce. The first appellate court upheld the divorce decree, dismissing the wife's appeal for failure to file a written statement.
Finding of the Court:

The High Court held that the trial court erred in making an ex parte decree without considering the wife's application for maintenance and expenses. It also held that the first appellate court erred in upholding the divorce decree solely on the basis of the husband's affidavit, without requiring corroborative evidence of the wife's mental disorder.
Issues: 1. Whether the trial court erred in making an ex parte decree without considering the wife's application for maintenance and expenses under section 24 of the Hindu Marriage Act? 2. Whether the first appellate court erred in upholding the divorce decree solely on the basis of the husband's affidavit, without requiring corroborative evidence of the wife's mental disorder?
Ratio Decidendi: 1. Section 24 of the Hindu Marriage Act provides for maintenance pendente lite and expenses of the proceedings to the defending spouse. The trial court is bound to decide such an application before proceeding with the case. 2. In matters of nullity and divorce, the court must have adequate proof of the allegations before making a decree. An affidavit alone is not sufficient to prove the mental disorder of a spouse. 3. The provisions of Order 8 Rule 5 of the Code of Civil Procedure, which allow for judgment in the absence of pleadings or admission of facts, are not absolute and must be applied with discretion, especially in cases involving persons with disabilities.
Final Decision: The High Court allowed the wife's appeal, set aside the judgments of the trial court and the first appellate court, and remitted the matter back to the trial court for consideration of the wife's application for maintenance and expenses, and for a fresh trial of the petition according to law.

JUDGMENT - Masodkar B.A. J.-This second appeal by the wife arises out of the marriage proceedings which were initiated by the respondent praying for a decree of nullity or in the alternative for divorce on the grounds that the appellant-wife was suffering from mental disorder and a fraud was practised on the respondent-husband by suppressing the facts about the mental state of the wife. To seek a decree for divorce, the grounds of cruelty and desertion were asserted. In the proceedings, the present appellant-wife admittedly filed an application under section 24 of the Hindu Marriage Act (hereinafter called “the Act”) as per Ex. 11 praying for interim maintenance at Rs. 350 per month and a sum of Rs. 1,000 for the expenses of the proceedings. This application was filed on January 22, 1980 which was supported by an affidavit of the wife (Ex. 12). Thereafter, before the trial Court it does not appear that any written statement was filed. Five applications were made for seeking time and when the matter came before the trial Court on April 14, 1980, again a similar application was moved, but that application was rejected. Acting upon the affidavit filed by the respondent-husband, which is at Ex. 23, in support of the allegations in the petition, the trial Court made a somewhat curious decree which for all purposes is ex parte that the marriage was null and void and it stood dissolved. Furthermore, it was directed that a decree for divorce be drawn accordingly. In the appeal taken up by the wife, the First Appeal Court was of the view that the decree of nullity could not be made in view of the bar of limitation. However, the decree for divorce could be made ex parte because no written statement was filed. Taking that view, the appeal was dismissed. This decree for divorce as is affirmed by the First Appeal Court is under challenge in the present second appeal. It does appear that during the course of the hearing of the appeal on behalf of the wife written statement was sought to be tendered, but the same was not accepted.

2. In the entire proceedings excepting, para 5 of the trial Court's judgment, it does not appear that there was any consideration bestowed upon the entitlement of such wife to seek maintenance pendente lite and the expenses of the proceedings for which proper application was filed supported by the affidavit as available at Exs. 11 and 12. Without deciding such an application, it is indeed difficult to permit the passing of such ex parte judgment only because the written statement is not filed, particularly when the allegations on the basis of which relief of nullity and divorce are sought are serious enough and, before they are accepted, required sufficient and adequate proof. In such matters, looking to the policy of law, it must be observed that the proceedings under section 24 of the Act have an important bearing with regard to the rights of the defending spouse. Not only the provisions of section 24 of the Act permit grant of maintenance pendente lite, but also it permits the Court to make an order with regard to necessary expenses of the proceedings. In a given case without .provision for the necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file a written statement. The trial Court, which was moved by filing the application, was bound to decide the appli-cation with regard to the maintenance and the expenses. There is, thus, obvious failure to follow the provisions of section 24 of the Act and that should be enough to set aside the judgment under appeal and remit the matter back to the trial Court directing it to consider the application filed at Ex. 11 supported by Ex. 12 and then to proceed with the enquiry in the petition according to law.

3. There is, however, another aspect which must be mentioned and that relates to the adequacy of the proof in such matters. Decrees of the kind sought by the spouses cannot be made as of course. The same should be

Click Here to Read the rest of this document