The court has jurisdiction to entertain and determine a divorce suit under the Indian Divorce Act, 1869, where the parties last resided together within its ordinary jurisdiction, and the wife's institution of suits for divorce and maintenance in another jurisdiction prior to the institution of the present suit implies her consent to the passing of a decree for divorce in favor of the husband.

( 1 ) THE plaintiff instituted the suit in the form of an application under S. 10 or S. 23 of the Indian Divorce Act, 1869 whichever will be applicable in the present case.

( 2 ) THE cause of making such alternative relief is that the husband/petitioner made out case of adultery as well as physical and mental cruelty or desertion simultaneously as against the wife.

( 3 ) THE petitioner/husband served a notice of making this application and filed the Affidavit-of-Service along with other incidental papers to establish that service was effected upon the respondent. In addition thereto, he produced a certificate issued by the Deputy Registrar, Original Side of this Court wherefrom it appears that the respondent did not appear either in person or by Advocate. Let the Affidavit-of-Service and other incidental papers along with the Certificate issued by the concerned Deputy Registrar be kept with the record.

( 4 ) SINCE no denial was there, I was inclined to proceed on the basis of Order 8, Rule 5 of the Code of Civil Procedure but Mr. K. S. Roy, learned Senior Counsel with the able assistance of Ms. Swapna Mukherjee learned counsel appearing with him, contended that in view of the circumstances particularly when the husband has brought certain charges of adultery as well as cruelty and desertion against wife, there should be witness action to bring the real picture before the Court for the ends of justice. This Court appreciated the stand taken by the learned counsel appearing for the petitioner and I directed for witness action.

( 5 ) THE plaintiff/petitioner/husband was examined at length. I am satisfied with the documentary evidence and oral evidences adduced by him. All the exhibits were marked save and except the Cassette and the transcripted part of the tape conversation in support of that cassette without being satisfied with the legal position to that extent.

( 6 ) MR. Roy at length argued on that score by saying that there is no question about the admissibility of the tape recorder as evidence. But that being the primary question, the transcript could be used to show that the transcriber had found the same as recorded there at the time of transcription. This operated as a check against tampering. They could be used as a corroborative evidence. In support of his contention, he relied upon a judgment reported in AIR 1975 SC 1788 (Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra ).

( 7 ) UPON being satisfied, I have called upon the witness to operate the machinery made for the purpose to check the transcription which was done in camera before this Court. I am satisfied with such operation of mechanism to prove the case and now such documents are exhibited as "e" collectively.

( 8 ) AFTER the witness action of the petitioner/husband is over, I called upon 'zubin' only son out of their wedlock, who was about 15 years old, to interrogate him personally when he frankly confessed about many aspects of the behaviour and attitude of his mother which goes straight against the respondent/mother. Since son's statement before me was balancing factor, I was not very much inclined to put him in the box for asking any question considering his age. But then Mr. Roy cited a Division Bench judgment reported in AIR 1959 Calcutta 306 (Purna Chandra Khandra v. State) to establish that the question of the capacity of the witness to testify is a question for the Judge himself to decide on the basis of the intellectual capacity and rational account irrespective of the age.

( 9 ) BEING satisfied with the argument I allowed the son to be examined as witness. Even in the examination he has supported the contentions of his father. The way the tender aged boy "zubin" adduced his evidence even volunteered against his mother, this Court has no other alternative but to observe that the situation of the society is alarming so far as the matrimonial relationships are concerned. There is no occasion for the Court to disbelieve