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High Court Of Calcutta
A. M. BHATTACHARJEE, S. K. MUKHERJEE, AJIT KUMAR NAYAK
RAMISH FRANCIS TOPPO - Appellant
Versus
VIOLET FRANCIS TOPPO - Respondent
Divorce Suit 16 Of 1985
Decided On : 08/22/1988
DIVORCE ACT, 1869 - SECTION 10, 11, 14, 17, 22, 45, 47, 51 - HINDU MARRIAGE ACT, 1955 - SECTION 20(2), 27A, 28 - SPECIAL MARRIAGE ACT, 1954 - SECTION 20(2), 32(2), 33 - PARSI MARRIAGE AND DIVORCE ACT, 1936 - SECTION 33 - CONSTITUTION OF INDIA - ARTICLE 14, 15(3) - DISSOLUTION OF MARRIAGE - DESERTION - ADULTERY - JUDICIAL SEPARATION - EVIDENCE - STATEMENTS IN PETITION - CORROBORATION - REASONABLE EXCUSE - ADULTERER AS CO-RESPONDENT - DISCRIMINATION - REASONABLE CLASSIFICATION - RATIONALE - CONFIRMATION OF DECREE - PRACTICE AND PROCEDURE.
Fact of the Case:
Husband filed a petition for dissolution of marriage on the ground of adultery and desertion. The Trial Court granted an ex parte decree of dissolution of marriage. The wife did not contest the petition but filed a Written Statement. The husband examined himself as the sole witness.
Finding of the Court:
1. The finding of the Trial Court that the wife deserted the husband for more than two years without reasonable excuse is justified and should be affirmed. 2. The wife's assertion in her Written Statement that the conduct of the husband compelled her to withdraw from the matrimonial home does not amount to reasonable excuse for desertion. 3. The evidence and pleadings of the parties show that the marriage between the parties has broken down irretrievably, making the allegation of desertion more readily acceptable. 4. Desertion, cruelty, and the like are grounds for divorce and not merely judicial separation under all the matrimonial laws operating in India. 5. The Divorce Act provides for divorce on the ground of adultery only, which, in the case of a wife seeking divorce, must be adultery coupled with some other lapses on the part of the husband. 6. The petitioner failed to comply with Section 11 of the Divorce Act, which requires the alleged adulterer to be made a co-respondent to the petition, without obtaining the permission of the Court. 7. The petitioner's allegation of adultery against the wife cannot be said to have been reasonably proved as per the standard of proof laid down by the Supreme Court in Dastane vs. Dastane. 8. Statements in the petition, though referable as evidence under Section 47 of the Divorce Act, cannot be the sole basis for a decree of dissolution of marriage. 9. Section 47 of the Divorce Act, Section 20(2) of the Hindu Marriage Act, and Section 32(2) of the Special Marriage Act, which make statements in the petition referable as evidence, while not making similar provisions for statements in the respondent's Written Statement, may violate Article 14 of the Constitution by discriminating against the respondent.
Issues: 1. Whether the wife's desertion of the husband for more than two years without reasonable excuse is established? 2. Whether the husband's allegation of adultery against the wife is reasonably proved? 3. Whether statements in the petition can be the sole basis for a decree of dissolution of marriage? 4. Whether Section 47 of the Divorce Act, Section 20(2) of the Hindu Marriage Act, and Section 32(2) of the Special Marriage Act violate Article 14 of the Constitution by discriminating against the respondent?
Ratio Decidendi: 1. Desertion of one spouse by the other is a ground for judicial separation under Section 22 of the Divorce Act, but not for dissolution of marriage under Section 10. 2. Adultery is the only ground for dissolution of marriage under Section 10 of the Divorce Act, and the petitioner failed to comply with Section 11, which requires the alleged adulterer to be made a co-respondent to the petition. 3. The standard of proof for matrimonial offenses is that the guilt must be proved beyond reasonable doubt, and the petitioner failed to meet this standard in proving the allegation of adultery. 4. Statements in the petition, though referable as evidence under Section 47 of the Divorce Act, cannot be the sole basis for a decree of dissolution of marriage, as they must be corroborated by other evidence. 5. Section 47 of the Divorce Act, Section 20(2) of the Hindu Marriage Act, and Section 32(2) of the Special Marriage Act, which make statements in the petition referable as evidence, while not making similar provisions for statements in the respondent's Written Statement, may violate Article 14 of the Constitution by discriminating against the respondent.
Final Decision: Decree for dissolution of marriage declined; decree for judicial separation granted under Section 22 of the Divorce Act.
( 1 ) I have no doubt that we can not but decline to confirm this decree nisi for dissolution of marriage passed by the learned District Judge in the Divorce Suit under Section 10 of the Divorce Act, 1869, which has come up before us for confirmation under Section 17 of the Act. I am, however, of opinion that, for the reasons stated hereinafter, a decree for divorce a mensa et thoro, i,e,, a decree of judicial separation should instead be passed in favour of the petitioner-husband against the wife-respondent under Section 22 a0 the Divorce Act.
( 2 ) IN Swapna Ghosh vs. Sadananda Ghosh (1988-2 Calcutta Law Journal 156) disposed of by this Bench, I have confessed my inability to appreciate the utility of retaining any longer the provisions of Section 17 of the Divorce Act of 1869, which compulsorily requires confirmation by this Court of the decree for dissolution of marriage passed by the District Court and that too, by a Bench of not less than three-Judges. It may be that the concerned Legislature in that mid-Nineteenth century intended the continuance of the marriage to be the rule and dissolution thereat to be the exception and attached so great importance to the continuance of marriage that it thought that a marriage could be allowed to be dissolved only after a District Judge had decreed the same and a three-Judge Bench of the High Court was also satisfied that it could not but be so decreed. Inspiration might have been derived from the law relating to Criminal Procedure whereunder a death-sentence could not, and even now cannot, be executed unless confirmed by the High Court and since the decree for divorce results in death of the marriage, the relevant law intended to express its very grave concern in respect of such a decree, as it did and still does in respect of a sentence of death. But as I have pointed out in some details in Swapna Ghosh (supra), under the Special Marriage Act of 1954 providing the general matrimonial law of the land and the various special matrimonial laws governing all the communities in India except the Christians like the Hindu Marriage Act of 1955, the Parsi Marriage and Divorce Act of 1936, the Dissolution of Muslim Marriages Act of 1939, etc. , a decree of dissolution by a District Court, and in some cases, even by Courts subordinate thereto, is final conclusive and binding, unless the party aggrieved chooses to prefer appeal, while, because of Section 17 of the Divorce Act, 1869, a similar decree between the Christian spouses would not acquire legal efficacy unless the proceedings are dragged to the High Court before a three-Judge Bench and confirmed by it. I have pointed out that these provisions under Section 17 have been very rightly done away with by an Amendment Act by the Uttar Pradesh State Legislature, being Uttar Pradesh Act No. 30 of 1957 and that, as has also been observed by a Special Bench of the Madhya Pradesh High Court in Meena vs. John Pormu (A. I. R. 1985 Madhya Pradesh 85 at 87), it is high time that similar amendment is introduced in the Divorce Act by Parliament on all-India basis or at least by our State Legislature without waiting any further for that august body to move in its due course. I have also said that these provisions may also appear to have discriminated the Christians on the basis of religion alone thus transgressing Article 15 of the Constitution and also to be violative of procedural due process for denying procedural reasonableness to the Christians, in the context of the other matrimonial laws operating in the country. Both my Lords Mookherjee, J. and Nayak, J. , have been pleased to concur with me in holding that the question of introducing some such amendment deserves very serious consideration. But while his Lordship Mookherjee, J, has, in his separate judgment (supra, at 163-164), expressly reserved his views on the Constitutional questions raised by me, his Lordship Nayak, J. , if I have read his separate judgement correc
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