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IN THE HIGH COURT OF CALCUTTA CIRCUIT BENCH AT PORT BLAIR
Girish Chandra Gupta And Mir Dara Sheko, JJ.
Silvidasan - Appellant
Versus
Anthony Ammal – Respondent
F.A. No. 001 of 2015
Decided On : 28-9-2015
For the Appellant :- Anjili Nag, Advocate.
For the Respondent:- Babita Das, Advocate.
Illicit relationship and threats by the wife constitute cruelty under Section 10(1)(X) of the Indian Divorce Act, 1869, even if the wife has not deserted the husband for two years as required under Section 10(1)(IX).
Headnote:
DIVORCE - GROUNDS - ADULTERY AND CRUELTY - INTERPRETATION OF SECTIONS 10(1)(IX) AND 10(1)(X) OF THE INDIAN DIVORCE ACT, 1869 - EVIDENCE OF ILLEGAL RELATIONSHIP AND THREATS - APPLICATION OF LEGAL PRINCIPLES - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
Husband filed for divorce on grounds of adultery and cruelty under Sections 10(1)(IX) and 10(1)(X) of the Indian Divorce Act, 1869. The wife denied the allegations and claimed that the husband had developed hatred and abhorrence towards her. The trial court dismissed the petition, finding no sufficient grounds for divorce.
Finding of the Court:
The High Court allowed the appeal, holding that the husband had proved the grounds of adultery and cruelty. The court found that the wife had an illicit relationship with another man, which led to threats and forced the husband to leave his own house. This amounted to cruelty under Section 10(1)(X) of the Divorce Act.
Issues: 1. Whether the husband had proved the grounds of adultery and cruelty under Sections 10(1)(IX) and 10(1)(X) of the Indian Divorce Act, 1869? 2. Whether the trial court erred in dismissing the petition for divorce?
Ratio Decidendi: 1. The court interpreted Section 10(1)(IX) of the Divorce Act, which requires desertion for two years, as not applicable in cases where the wife's conduct has forced the husband to leave the house. 2. The court held that the evidence of the wife's illicit relationship, coupled with the threats to the husband's life, amounted to cruelty under Section 10(1)(X) of the Divorce Act. 3. The court applied the principles of evidence, including the rules of pleading and the significance of quality over quantity in assessing evidence.
Final Decision: The High Court allowed the appeal, set aside the trial court's judgment, and pronounced a decree nisi dissolving the marriage between the parties.
Mir Dara Sheko, J.
This appeal is directed against a judgement and decree dated 27th October, 2014 passed in Matrimonial Suit No. 13 of 2013 by the Additional District Judge, Andaman and Nicobar Islands, Port Blair dismissing the application for dissolution of marriage under section 10 (IX) and (X) of the Indian Divorce Act, 1869 without any order as to costs. The petitioner has come up in appeal.
2. We have heard the learned advocates appearing for the parties.
3. Briefly stated the case of the petitioner/appellant is as follows:-
a) The petitioner, ordinarily a resident of Andaman and Nicobar Islands, is a Christian by faith.
b) The petitioner is a Government servant under the Forest Department, working as a labourer.
c) The respondent also a Christian by faith was given in an arranged marriage on 25th February, 1989 which was duly registered before Sub-Registrar, Kerala.
d) The parties started living in conjugal relationship at a house constructed by the petitioner at Hope town, Bamboo flat.
e) A male child was born out of the aforesaid wedlock. The parties led a happy married life until March 2004.
f) In or about March 2004 the respondent developed an extramarital relationship with one Shri Shaji also a resident of Hope town. Soon thereafter the respondent accompanied by the said Shri Shaji left the islands and stayed with the said Shri Shaji in the mainland for a period of about four months.
g) In or about August 2004 the respondent came back after she had developed differences with the said Shri Shaji and begged for mercy of the petitioner for her mistakes. The petitioner in good faith and out of love and affection, both for the child and the respondent agreed to take her back.
h) After the respondent was resettled in the house of the petitioner she once again started indulging in extramarital relationships with the said Shri Shaji. Upon protest she insisted that the petitioner should also permit Shri Shaji to reside at her matrimonial house to which the petitioner was not agreeable.
i) The relationship between the parties naturally became bitter. The petitioner was also threatened of dire consequences including loss of life. He in the circumstance left his own house and started residing at a rented accommodation since August 2004.
j) Even that did not satisfy the respondent; she started demanding the entire salary of the petitioner.
k) In the year 2007 the petitioner filed a suit for divorce, registered as Matrimonial Suit in No. 26 of 2007, which was, however, dismissed for default.
l) The present application for dissolution of marriage was filed on or about 12 December, 2012.
4. The respondent in her written statement has admitted that the petitioner has been residing separately but such separation according to her commenced in February 2007. No other allegation tabulated above has specifically been denied. Besides evasive and sweeping denial case of the respondent in her written statement is that the petitioner "developed an attitude of hatred and abhorrence for the respondent." She has alleged that the petitioner continuously treated her with contempt and abused her in an intoxicated condition. He is given to alcoholic drinks and that the allegations are imaginary and have been concocted in order to obtain divorce.
5. On the basis of the aforesaid pleadings learned Trial Court framed the following issues:-
"Issues
1. Is the suit maintainable in the present form?
2. Has the court any jurisdiction to try the suit?
3. Has the petitioner/husband any good cause to file this suit?
4. Whether the respondent O.P/Wife has inflicted any sort of torture on the petitioner/husband?
5. whether there is any possibility of both sides to reside together peacefully?
6. Is there any sufficient ground on the part of the husband/petitioner to file the petition prying for divorce?
7. Is the petitioner/husband entitled to get any relief as prayed for?
8. To what other relief, if any, the petitioner may get?"
6. The issues No. 1 and 2 were answered in the
