K. Lahiri, C.J.(Acting)
1. The decree nisi for dissolution of marriage passed by the District Council Court, Khasi Hills under Section 14 of the Indian Divorce Act, 1869 for short 'the Act', has come up for confirmation under Section 17 of the Act.
2. Divorce Galore Syndrome : The other names of dissolution are 'destruction end of life and death'. We are alarmed to note the mercurial upswing of divorce proceedings in this region. A considerable number of cases coming from this region relates to 'legal separation of man and wife'. These are all divorce a vinculo matrimony', a total divorce of husband and wife dissolving the marriage tie and releasing the parties wholly from their matrimonial obligations. Two young persons go to Church solemnly pledge that they shall ever live as man and wife. The marriages are religiously and solemnly performed. In all systems, be that Hindu, Islamic, Christian etc. marriage is a legal union of one man and woman as husband and wife-- it is a legal status, condition or relation between a man and woman united in law for life for the discharge to each other and the community certain positive duties. How is it that so many solemn pledges by so many persons are forgotten over-night and matrimonial ties are snapped? It seems none comes forward to resolve the matrimonial disputes to see that the couple lives together instead of diverting their lives to dangerous courses. What happens to their children after the divorce? What happens to the divorcees themselves? How the society views the divorcees and their regardless children? The effects of divorce on the poor children are well known and the lime has come when lawyers, thinking persons, social reformers should come forward to find out the root causes for such a large number of divorces. Steps and actions have become essential to inform all that a marriage is not a child's play. The malady requires diagnosis by 'social physicians', who shall undoubtedly find out the preventive and curative measures to bring back calm and peace in the society and households. A conjoint action to prevent divorces and encourage the couples to live in peace and amity for their sake, for the sake of their children and for the society. The action and inter-action of divorce proceedings have telling effect on the society. We all realize but as yet nothing tangible has been done. Public interest requires that the marriage bond should not be set aside lightly unless it becomes absolutely imperative.
3. Legal aid in Matrimonial Causes :
The world over Legal Aid Societies have done yeoman services in matrimonial causes. In England a very large proportion of the cases were brought under the provisions of Legal Aid and Advice Act, 1949 and later statutory provisions have been made in the Legal Aid Act, 1974. A very large proportion of cases brought under the provisions is concerned with matrimonial causes. In the field of Legal Aid and Legal education the Legal Aid societies can do a lot. In England the Law Societies, Matrimonial causes Department, deal with cases, where maximum contribution has been made for educating the litigants as well as providing appropriate and adequate legal assistance to the needy. We draw the attention of State Legal Aid Boards to ponder over the matter and evolve measures to assist the litigants who are really in distress, ameliorate their conditions and render appropriate assistance to those who need legal aid. We hope and trust that the Legal Aid Act, which we are told at the Bar, is taking a concrete shape to come out as a Parliamentary Act, shall surely make necessary provisions in respect of Matrimonial causes.
4. What about appointment of an officer by the State Government under Section 17A of 'the Act' and making of the necessary Rules for their control and guidance? Long thirty and seven years have rolled by and thousands of decree nisi have been confirmed ex parte by the High Court. The Government is fully aware that even a Respondent has no right to show cause against the decree nisi being made absolute. Only Officers under Section 17A of the Act or the third person are entitled to intervene or show cause against the decree nisi being made absolute. Even though serious allegations like adultery, rape, cruelty, bigamy, sodomy or beastiality are alleged, the charge of such cases remains with the officers appointed under Section 17A of the Act, and, he cannot leave the responsibility of the case in the hands of the Respondent. How is it that the State Governments have so long failed to appoint Officers under Section 17A of the Act? We feel that the State Governments, particularly the Government of Meghalaya should appoint such Officers. The Officer in each State shall exercise jurisdiction exercisable by King's Proctor in England. We are of the opinion that the time is ripe when each State Government should appoint an Officer, preferably an Advocate conversant with matrimonial causes able to assist the High Court when these cases come up for confirmation. Indeed, as has been rightly pointed out by learned Advocate General, Meghalaya in no other earlier proceedings this Court pointed out the consequence of divorce proceedings, the necessity for legal aid and, in particular, the imperative need to appoint an officer under Section 17A. Learned Advocate General assured us that he shall scrutinize the matter and do the needful in Meghalaya as expeditiously as possible.
5. What about Fulfilling The Avowed Object of Article 44 of The Constitution?
The prime object of Article 44 is to bring about integrity of the Nation by securing for the citizens a uniform Civil Code throughout the country. Hindu Divorce Law, Christian Divorce Law, Islamic Divorce Law, and so forth are diverse laws meant for Indian brothers and sisters. Although Indian are one but Civil Codes, including Laws governing divorces are divergent, separate and distinct. A common Civil Code will bring unity and integrity. Divergent Codes may be one of the deterrent factors impeding integration. We feel that the best of the divorce laws should be assimilated and so structured that the Common Code may not affect the sentiments and feelings of any section of persons belonging to any religious faith or group. If the legal system is to ensure and preserve the health of society so that people may live worthwhile and productive lives; and, when lawyers are viewed as 'social physicians' whose services contribute towards the achievement of the laws ultimate goal that is, good of the society, we feel that it is the duty of the social reformer, 'social physicians' and all thinking persons to grapple with the problem of contemporary society and resolve it. Being members of a functional group, learned members of the noble profession, are best suited to the task of transforming the attitude and belief of the people. We feel that a uniform Civil Code throughout the territory of India shall concretise the unity of our country and shall bring about total integration.
6. Relevant Facts Necessary for The Purpose or Disposal of The Case.
An application was filed by the petitioner for dissolution of her marriage with Respondent No. 1, U. Skipland Sanglyne under Section 10 of the Indian Divorce Act, 1869 read with the United Khasi and Jaintia Hills District Divorce Act, 1955 before Judge, District Council Court, Khasi Hills, Shillong. The ground for dissolution is that Respondent No. 1 committed adultery with the corespondent and deserted her without any reasonable excuse for a period more than 2 years. The striking feature of the Act is that a husband may obtain dissolution of the marriage only on the ground that 'since the solemnisation of the marriage the wife has been guilty of adultery' but, in the case of a wife adultery of her husband alone is not a ground for dissolution. None could explain this discrimination. If adultery of the wife alone can be a valid ground for dissolution of the marriage why the same law provides that the wife cannot get dissolution on the ground of adultery by her husband. Why is it that she is also required to establish 'desertion without any reasonable excuse for more than two years'? Is it a discrimination on the ground of sex? However, in its wisdom Parliament considered that law should be such, we shall follow the law until it is altered or changed. There is no challenge of discrimination or inequality and so we proceed to dispose of the case according to the existing law.
7. The wife petitioned for a divorce against her husband on the ground of adultery coupled with desertion for more than two years without any reasonable excuse. In support of her case she has examined herself and one witness. In order that the Court may have jurisdiction under the Act, the parties, must profess the Christian religion and the marriage in question must be held according to the Christian faith. In the instant case we find that the parties are Christians and they were married on 8-2-78 under the Christian Marriage Act at Rangthong Presbyterian Church. The marriage certificate, Ext. 1 proves such marriage. Witness No. 2 U. Plain lawphniaw has stated that the marriage was solemnised by Rev. S.G. Syiemilieh on 8-2-78 at Rangthone Presbyterian Church. After their marriage they lived as husband and wife. The marriage was consummated. However, cohabitation was only up to April 17, 1979. On 18th April, 1979 Respondent No. 1 without any reasonable cause deserted the petitioner and lived in adultery with co-respondent Ka Mongland Ummih of Keniong village. It has been proved that as a result of cohabitation between the respondent and the co-respondent a female child was born. She was aged about 6 months at all relevant time. The petitioner stated that she never condoned the act of adultery of her husband. It has been stated by both the witnesses that in view of the adulterous conduct the respondent was ex-communicated by the church in May, 1979. We have examined the records and find that the respondent deserted the petitioner on 18-4-1979 and the divorce suit was instituted in May, 1981. Under these circumstances the period of 2 years had elapsed. We also find from the records that the respondent and the co-respondent were duly served with the notice of the proceeding by take Judge, District Council Court, Shillong. Learned Judge was satisfied on the evidence adduced by the petitioner that there was absence of any collusion between the parties and that the application was filed without any unreasonable delay. Learned Judge held, on appreciation of the evidence, that the petitioner succeeded in establishing that respondent No. 1 was guilty of adultery. Learned Judge also reached the conclusion on materials based on record that respondent No. 1 had deserted the petitioner without any reasonable cause for over two years.
8. The Onus of Proof and The Standard of Proof is Required For Establishing Allegations of Adultery, Bigamy Etc.
It is necessary to take note of the trend in the law as to the standard of proof in materimonial causes, which is more often than not overlooked by the courts trying matrimonial causes. A petition for divorce is a civil proceeding and not a criminal proceeding. There is, however, some overlapping in view of the character of imputation, in view of necessary to prove the allegations of adultery, cruelty, bigamy, sodomy, beastiality, etc. in divorce proceedings. The onus of proof of adultery etc. is undoubtedly on the person who alleges adultery etc. Direct evidence of adultery is rare. In most of the cases the fact of adultery is required to be inferred from the surrounding facts and circumstances of the case. There must be proof of disposition and opportunity for committing adultery. If a prima facie case is made out and the party charged fails to give evidence in disproof, that may be a fact, which the court is entitled to take into consideration in favour of the petitioner. We delved into the question and answered the same in Ka Dymmiew Silty Giri v. U. Moonly Passah, AIR 1982 Gau 74 (SB) we have taken the same view in U Poland Star Basaiawmoit v. Ks Embhah Violet Challam (1984) 1 Gauhati LR (NOC) 16 (SB). There are two main ways in which adultery is normally sought to be proved. The first is where there is no direct evidence of the commission of the offence but it is sought to be proved circumstantially, by inference from the fact that there is a guilty affection between the two parties coupled with opportunity. Secondly, it may be proved by direct evidence.
9. In Blyth v. Blyth, 1966 AC 643 (HL), Lord Denning, Lord Pearce and Lord Pearson held that adultery required proof of the standard required in a civil case i.e., a lesser degree of proof is required to 'satisfy' the Court.
Lord Denning expressed thus :
'Sitting in this House, I feel at liberty to say that I prefer Wright v. Wright (1948) 77 CIR 19(SIC) to Ginesi v. Ginesi (1948) P. 179. This House held in Mordaunt v. Moncreiffe (1874) L. R. 2. H. L. Sc. & Div. 374 that the analogies and precedents of criminal law have no authority in the divorce Court, a civil tribunal. It is wrong, therefore, to apply the analogy of criminal law. We should not say that adultery must be proved with the same strictness as is required in a criminal case. We should say simply that it must be proved to the satisfaction of the Court.
So far as the standard of proof is concerned, I would follow the words of Dixon, J. which I have quoted and which I elaborated in Bater v. Bater (1951) P. 35 with the approval of the court of Appeal in Hornal v. Neuberger Products Ltd. (1957) 1 Q. B. 247. In short it comes to this : So far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject matter. In proportion as the offence is grave, so ought the proof to be clear.........'
Lord Pearce observed :
'The courts have held that cogent evidence is required for proof of adultery. (Albeit, as I think, the proof demanded is not that demanded in criminal cases and I agree with the observations by my noble and learned friend, Lord Denning, as to the cases of Ginesi and Wright) and on other matters with which your Lordships are not here concerned, the courts have expressed views as to the cogency of proof demanded'.
Lord Pearson also took the same view.
10. It follows, therefore, that the analogies and precedents of Criminal Law have no authority in the divorce court, a civil Tribunal It would be wrong, therefore, to apply the analogy of criminal law in matrimonial proceedings. As such, adultery is not required to be proved with the same strictness as is required in a criminal cases. The allegation must be proved 'to the satisfaction of the Court'. Insofar as the standard of proof is concerned, the ground for divorce may be proved by preponderance of probability, but the degree of probability shall depend on the subject matter. If the allegation is grave the proof must be clear. The view has been taken by the Supreme Court in E.J. White v. Mrs. K.O. White, AIR 1958 SC 441 (444) while explaining the meaning of expression 'satisfied on the evidence' contained in Sections 10 and 14 of the Act.
11. We have decided the case bearing in mind the principles just alluded. In the instant case there is ample evidence to show that the respondent and the co-respondent did not come to refute the allegation of adultery in spite of notices of the suit. It is a relevant factor which we have taken into consideration in favour of the petitioner. Secondly, the petitioner has proved by adducing cogent evidence that the respondent and the corespondent had disposition and opportunity for committing adultery, they lived together in the same house under the same roof for a pretty long time. The respondent and the corespondent had a child while respondent was living with him under the aforesaid circumstances. The next feature is that in view of the adulterous lives led by the respondent with the co-respondent at the instance of the people, the church authorities ex-communicated them. These circumstances speak in volume and these are sufficient to establish the allegation of adultery brought by the petitioner.
12. For the foregoing reasons we hold that the learned Judge was justified in pronouncing the decree nisi on the facts and circumstances of the case. We accordingly have no hesitation in confirming the decree nisi in exercise of the powers under Section 17 of the Act.
13. In the result the decree nisi is confirmed. There will be no order as to costs.