Skip to content


Ka Dymmiew Silty Giri Vs. U. Moonly Passah - Court Judgment

LegalCrystal Citation
Subject;Family
CourtGuwahati High Court
Decided On
Case NumberDivorce Suit No. 55 of 1979
Judge
ActsDivorce Act, 1869 - Sections 10 and 14
AppellantKa Dymmiew Silty Giri
RespondentU. Moonly Passah
Prior history
1. We have noticed certain shortfalls in the proceedings which cannot be overlooked. To obtain relief under the Divorce Act, 1869, for short, 'the Act', the conditions set out in the provisions of 'the Act' must be strictly complied by the parties. The Act is applicable to the partie? who profess Christian religion. However, if one of the parties profess Chritian faith it would give jurisdiction to the Court to give relief under 'the Act'. Dissolution of a marriage is a serious thing and the
Excerpt:
.....444. their lordships have held that the words imply that the duty of the court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition, if not satisfied. the terms of the statute recognise this plainly, and i think it would be quite out of keeping with the anxious nature of its provisions to hold that the court might be 'satisfied' in respect of a ground for dissolution, with something less than proof beyond reasonable doubt, i should, perhaps, add that i do not base my conclusion as to the appropriate standard of proof on any analogy drawn from, the criminal law. ' their lordships observed that the said rule laid down by the house of lords should provide the principle of rule which indian court should apply to cases governed by..........444. their lordships have held that the words imply that the duty of the court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition, if not satisfied. to prove a case, the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy what sir william scot described in loveden v. loveden (1810) 161 er 648 as 'the guarded discretion of a reasonable and just man'. their lordships quoted with approval the observations of lord mac dermott in preston jones v. preston jones, (1951) ac 391 at page 417, 'the jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict.....
Judgment:

1. We have noticed certain shortfalls in the proceedings which cannot be overlooked. To obtain relief under the Divorce Act, 1869, for short, 'the Act', the conditions set out in the provisions of 'the Act' must be strictly complied by the parties. The Act is applicable to the partie? who profess Christian religion. However, if one of the parties profess Chritian faith it would give jurisdiction to the Court to give relief under 'the Act'. Dissolution of a marriage is a serious thing and the Court trying matrimonial cases should carefully follow the provisions of 'the Act'. The grounds on which a Christian marriage may be dissolved have been set forth in Section 10 of 'the Act'. Section 11 makes it obligatory on a husband, in a petition for dissolution of marriage on the ground of adultery, to make the adulterer a co-respondent unless he is exempted or excused by the Court on one of the three grounds mentioned in the Section. Leave for such 'excuse' must be applied for and duly obtained. Collusion to obtain a decree for dissolution of a marriage has been expressly prohibited under Section 12 of 'the Act'. Collusion in judicial proceeding is a secret agreement between two persons that one should institute a suit against the other, in order to obtain the decision of a judicial Tribunal for some ulterior purpose, such collusion may be apparent or patent, but it is very rare. What is more common is secret or covert agreement to obtain a decree colluding with each other. However, collusion in matrimonial proceedings is said to exist where initiation of a suit for dissolution of marriage is procured or its conduct provided for by agreement or bargain express or implied, between the parties or their agents, vide Halsbury's Laws of England, 3rd Edn. Vol. 12 pp. 235, 236. Therefore, a collusive bargain for the procurement of a decree on a false case or improper pressure by financial bribery or threat or promise to abandon a defence is abjured

The order of trial Court must show that it exercised in so far as it is reasonably possible, to find out absence of collusion in such proceedings. The Court should as well consider whether the petitioner has been accessory io or connived at or has condoned the adultery vide Section 13 of the Act. The expression 'satisfied on the evidence' contained in Section 14 should not be taken lightly. The expression imposes a heavy duty on the Court to be satisfied. In majority of the cases we find that the grounds for dissolution is a commission of adultery by the other party. Adultery is voluntary sexual intercourse between a married man and some one other than his wife or between a married woman and someone other than her husband, vide Websters Seventh New Collegiate Dictionary. Adultery is consensual intercourse between a married person and a person of the opposite sex not the other spouse, during the subsistence of a valid marriage, vide Halsbury's Laws of England 3rd Ed. Vol. 12 pp. 235, 236.

2. What is the standard of proof in a divorce proceeding? the expression 'satisfied on the evidence' came up for consideration before the Supreme Court in E.J. Tahite v. Mrs. K.O White AIR 1958 SC 444. Their Lordships have held that the words imply that the duty of the Court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition, if not satisfied. To prove a case, the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy what Sir William Scot described in Loveden v. Loveden (1810) 161 ER 648 as 'the guarded discretion of a reasonable and just man'. Their Lordships quoted with approval the observations of Lord Mac Dermott in Preston Jones v. Preston Jones, (1951) AC 391 at page 417,

'The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be 'satisfied' in respect of a ground for dissolution, with something less than proof beyond reasonable doubt, I should, perhaps, add that I

do not base my conclusion as to the appropriate standard of proof on any analogy drawn from, the criminal law. I do not think it is possible to say at any rate since the decision of this House in Mor daunt v. Moncreife (1874) 30 LT 649 (F) that the two jurisdictions are other than distinct. The true reason, as it seems to me why both accept the same general standard proof beyond reasonable doubt lies not in any anology but in the gravity and public importance of the issue with which each is concerned.'

Their Lordships observed that the said Rule laid down by the House of Lords should provide the principle of Rule which Indian Court should apply to cases governed by the Indian Divorce Act and the standard of proof in divorce cases would, therefore, be such that if the Judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offences. It has been ruled that matrimonial jurisdiction and criminal jurisdiction are distinct and separate; but the terms of Section 14 of 'the Act' make it clear that when the Court is satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Courts in India would act. The rationale for adopting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial cases. Their Lordships have held that in a suit grounded on a matrimonial offence, it is rarely possible to prove the offence by direct evidence barring in very few exceptional cases. Therefore, the Court must depend on circumstantial evidence in almost all the cases,

3. We would like to observe that the Court is not bound to pronounce a decree for dissolution of marriage even when the petitioner proved his/her case if it finds that the petitioner has been guilty of adultery or that the petitioner has been guilty of 'unreasonable delay in presenting or prosecuting such petition' or the petitioner is guilty of cruelty towards the other party or the petitioner had deserted or wilfully separated himself/herself from the other party before the adultery complained of and without reasonable excuse the petitioner wilfully neglected or misconducted towards the other party, which conduced to the adultery. The observations are made for the guidance of the Courts below in

charge of the Administration of Justice in matrimonial cases.

4. Let us now turn to The instant case. The judgment is not up to the expectation. It is true that the Judge, District Council Court, is not governed by the letters of the Civil P.C. yet it is governed by its spirit. Its guiding stars are 'the principles of justice, equity and good conscience'. A judgment must be full, clear, exhaustive. The Court must state the case of the petitioner in brief, set forth the issues which are called upon to decide and reasoned decisions on the issues. The judgment must contain the material facts so that the court having jurisdiction to confirm the decree can gather a full picture of the entire case of the petitioner on mere perusal of the judgment.

5. In the instant case the wife petitioned for dissolution of her marriage with the respondent, her husband, on the ground that he had commit led adultery coupled with desertion, without any reasonable excuse for two years or upwards. The adulteress has been impleaded as co-respondent. Notwithstanding due' receipt of the notice the respondent did not contest the suit. The proceeding was heard ex parte. The petitioner examined 3 witnesses including herself. She has proved that they were married on 5-4-1975 under the Christian Marriage Act and the marriage was solemnised by Rev. L. Dkhar at Jaiwa Presbytarian Church. Af'er their marriage they lived as man and wife, cohabited at Jaiaw Langsning, but had no issue from the wedlock. In Jan., 1976 the respondent without any cause whatsoever deserted her. She went to recall him on various occasions, but the respondent refused to return to her. She came to learn that the respondent had committed adultery with the co-respondent and they were openly living together and leading an adulterous life. For that act of adultery the respondent was ex-communicated from the Church. She continued to live her deserted life in her parents house and has ultimately resorted to the suit. P.W. 2, U.P. Pariat, proves that the marriage was duly solemnised by Rev. L. Dkhar and the parties lived together as husband and wife. He proves that the respondent deserted the petitioner and committed adultery with the co-respondent. He has also stated that the respondent was excommunicated from the Church for the

commission of adultery, P.W. 3 B.H. Jyrwa supported the case of the petitioner in all material particulars.

The learned Judge was satisfied on perusal of the evidence. The parties are Christian; they were married under the Christian Marriage Act and the said marriage was duly solemnised on 5-4-1975 at Jaiwa. He held that the parties lived and cohabited together for sometime, but in Jan., 1976 the respondent without any valid cause deserted the petitioner and committed adultery and continued to commit the same openly and lived as husband and wife. The 'learned Judge was satisfied that the Church had excommunicated the respondent for adultery. There was no collusion or connivance between the parties. The learned Judge was satisfied as to absence of collusion in the instant case and concluded that the petitioner was entitled to a decree for dissolution of the marriage and accordingly pronounced a decree nisi.

6. We hold that the learned Judge was justified in arriving at the conclusion and in pronouncing the decree nisi on the facts and in the circumstances of the case.

7. As a result of the foregoing discussions we confirm the decree for dissolution of the marriage made by the learned Judge under Section 17 of the Act. However, there will be no order as to costs as the respondents have not turned up to contest the proceedings before this Court as well.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //