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HIGH COURT OF ORISSA
S. K. Ray, J.
ANUPAMA MISRA - Appellant
Versus
BHAGABAN MISRA - Respondent
First Appeal 59 Of 1965
Decided On : NOVEMBER 01, 1971
HINDU MARRIAGE ACT - SECTION 10(2), 23 - JUDICIAL SEPARATION - RESCISSION OF DECREE - ADULTERY - STANDARD OF PROOF - DIVORCE - GROUNDS.
Fact of the Case:
The appellant and respondent were married in 1956. The marriage was troubled, and the appellant left the respondent's house in 1957. The respondent filed for judicial separation in 1958, alleging adultery. The appellant contested the proceeding and denied the allegations. During the proceeding, the appellant gave birth to a daughter. The respondent amended his application to allege that the daughter was illegitimate, born out of the appellant's adulterous relationship with one Rama Narayan. The appellant filed an additional written statement denying these allegations. The appellant did not appear at the final hearing, and the court granted the respondent a decree for judicial separation. In 1962, the appellant filed an application to rescind the decree for judicial separation, alleging that it was obtained through fraud and collusion. The respondent filed objections to the application. The appellant also filed a petition for divorce, alleging that the appellant was living in adultery and that there had been no resumption of cohabitation for two years after the decree for judicial separation. The lower court dismissed the appellant's application to rescind the decree for judicial separation and granted the respondent a decree for divorce.
Finding of the Court:
The court held that the decree for judicial separation was obtained in violation of the mandatory provisions of Section 23 of the Hindu Marriage Act, as the court failed to consider all the matters specified in the section before passing the decree. The court also held that the decree for divorce was not sustainable, as the respondent failed to prove the ground of adultery beyond reasonable doubt.
Issues: 1. Whether the decree for judicial separation was obtained in violation of the mandatory provisions of Section 23 of the Hindu Marriage Act? 2. Whether the respondent proved the ground of adultery beyond reasonable doubt?
Ratio Decidendi: 1. Section 23 of the Hindu Marriage Act imposes mandatory conditions on the power and duty of the court in granting any relief under the Act. Before granting any relief, including judicial separation, the court must examine all the circumstances in the light of Clauses (a) to (e) of Sub-section (1), even if the defendant is absent. Clauses (a) to (e) of Sub-section (1) are cumulative in operation, and the court must be satisfied with regard to such matters in the manner contemplated in those clauses before it can pass any decree for judicial separation or any other relief obtainable under any of the provisions of the Act. 2. The standard of proof required for establishing matrimonial offences is beyond reasonable doubt. The court must be satisfied beyond reasonable doubt that the matrimonial offence complained of is established.
Final Decision: The court set aside both the decree for judicial separation and the decree for divorce and remitted both matters back to the lower court for disposal in accordance with law.
S. K. RAY, J.
( 1 ) ON 22-5-56 the appellant in both these appeals was wedded to the respondent. They are Bramhins by caste, and their marriage was a sacramental one. The marriage did not run smoothly for long, and entered into a troubled phase. At the time of this marriage, the husband was a student in the college. At his village home, where he took his bride after marriage, remained his mother, his younger brother, and a married sister. Ultimately, the appellant left the house of her husband on 10th of December, 1957, and went to reside with her parents. The parties differ as to the cause of such desertion. According to the appellant, she was compelled to flee on account of intense mental torture to which she was subjected by the inmates of her husband's house, as she had not brought sufficient dowry along with her. According to the husband, she developed illicit intimacy with one Ram Narayan and committed adultery with him, and lastly left the house of her own accord in company with her paramour.
( 2 ) ON 20th of January, 1958, the respondent (husband) initiated proceedings under Section 10 (1) (f) of the Hindu Marriage Act, 1955, praying for a decree for judicial separation. This proceeding was numbered as O. S. 3/58. The appellant appeared and contested and denied the allegations of adultery levelled against her. During the course of this proceeding a daughter was born to the appellant. The husband amended his application for judicial separation by making the supplementary allegation that this daughter is an illegitimate issue born out of adulterous connection of the appellant with Rama Narayan. This amendment was allowed and the appellant filed her additional written statement denying these fresh allegations. The appellant contested the said proceeding and as the order-sheet of that case would indicate, she took steps on 5-2-61 for issuance of summons on her witnesses obviously to participate in the trial. The case was set down for final hearing on 8-9-61. On that day the appellant did not appear and her counsel Sri P. C. Misra entered no instructions and filed a letter, alleged to have been written by the appellant to him (proved in this case as Ext. 1 ). The case was heard ex parte that very day, and was posted to 9-9-61 for judgment. On that day an order was passed declaring that the husband is entitled to a decree for judicial separation from his wife.
( 3 ) ON 23rd/27th November, 1962, the appellant filed an application for rescinding the decree for judicial separation purporting to be one under Order 9, Rule 13, C. P. C. , but it was treated as one under Section 10 (2) of the Hindu Marriage Act, and disposed of as such. On the basis of this application, Misc. Case No. 1/63 was registered. This case has been dismissed by the common judgment out of which both these aforesaid appeals arise. M. A. No. 103 of 1965 is from that part of the judgment by which the Misc. Case No. 1/63 was dismissed.
( 4 ) SUBSEQUENTLY on 19-10-63 the respondent filed an application under Section 13 (1) (i) and (viii) of the Hindu Marriage Act for divorce. This proceeding was numbered as O. S. 35 of 1963. This proceeding was heard analogously with the aforesaid Misc. Case No. 1/63 and both proceedings were disposed of by a common judgment by the 1st Additional District Judge of Cuttack. The suit for divorce has been decreed. M. A. No. 59/65 is from this decree.
( 5 ) THE ex parte decree for judicial separation was passed in O. S. 3/58 on the ground that the appellant had, after the solemnisation of her marriage with the respondent, sexual intercourse with one Rama Narayan. This ground is covered by section 10 (1) (f) of Hindu Marriage Act 1955. Evidence substantiating this ground was adduced ex parte, and was not subject to cross-examination.
( 6 ) THE proceeding for divorce (O. S. 35/63) is based on two grounds, namely, (a) that the petitioner is living in adultery, and (b) that there has been no resumption of cohabitation as between t
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