The judgment established the importance of complying with S.11 of the Indian Divorce Act, the standard of proof required to establish adultery, and the court's limited discretion in excusing the non-compliance of S.11.

Varghese Kalliath, J.

A well-educated young couple with two children are before us. The husband filed a petition under S.10 of the Indian Divorce Act, for short, the Act, to snap the marriage tie by a decree of the court dissolving the marriage with his wife, the counter petitioner. Their marriage was on 21-5-1979. Parties belong to Roman Catholic Community and their marriage was solemnized at the Bishop's House, Kottayam. After the marriage, the counter petitioner gave birth to two children.

2. S.10 of the Act provides that a husband may present a petition to the District Court or to the High Court praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. The provision for dissolution of marriage, particularly, a dissolution at the instance of the husband, is a very stringent provision. The husband is entitled to claim divorce only if the wife is found to be guilty of adultery. Even in a case where the marriage is irretrievably broken and the parties cannot lead with peace and tranquility a married life, for sufficient reasons, other than the ground of adultery and even if the court is satisfied that the marriage relationship cannot be resurrected by conciliation so long as the law provides that the court can grant a decree of dissolution of marriage, only if the wife is found to be guilty of adultery, the position is that the court has to fold its hands and say that the court is helpless

3. We are prompted to say this because with great hopes seeing that both husband and wife are very educated and two children are there who are innocent in this dispute, we called the husband and wife to appear before us and we made a very earnest and sincere attempt with the active co-operation of counsel appearing for the parties for a re-conciliation between the parties so as to salvage the marriage. The wife, who is now resisting divorce said blatantly and adamantly that she is not prepared to continue the married life and she will never live with the petitioner-husband. Though we spent some time in our anxiety to repair the impaired marriage, ultimately, we got the impression that the marriage, at any rate, has broken irretrievably and it is not possible to re-unite the snapped marriage tie. In these circumstances, we heard the matter and we want to dispose of the matter in accordance with law.

4. The wife plainly and clearly expressed an attitude that whatever 'be the consequences, she cannot live with the appellant accepting him as her husband. At the same time, she resists the dissolution of marriage and insists that the question of dissolution of marriage has to be decided strictly in accordance with law. We thought for a moment, what is the purpose of keeping alive a marriage where a wife cannot reconcile and accept the other party as her husband? But, we cannot decide the case on the basis of this aspect of the matter. It will be extra judicial and may go against the provisions of the Act. Judges will be confronted with rare circumstances like this. In Francome v. Mirror Group Newspapers Ltd. (1984) 2 AII.ER 408 at 412-413, Lord Donaldson MR said: "in very rare circumstances, a situation can arise in which the citizen is faced with a conflict between what is, in effect, two inconsistent laws. The first law is the law of the land. The second is a moral imperative, usually, but not always, religious in origin. An obvious example is the priests' obligation of silence in relation to the confessional, but others can be given. In conducting the business of the courts, judges seek to avoid any such conflict, but occasionally it is unavoidable. Yielding to the moral imperative does not excuse a breach of the law of the land, but it is understandable and in some circumstances may even be praiseworthy. However, I cannot over -emphasize the rarity of the moral imperative."

5. We have to remember that as Lord Hailsham once said: "the rule of law is a confidence