1. This reference under S. 17 of the Divorce Act is by the III Addl. Judge, City Civil Court, Bangalore City, seeking for confirmation of the decree dt.24-7-81 passed by his predecessor, for dissolution of marriage, by his letter dt.20-4-1982.
2. The petitioner, Nirmala was married to the respondent R. Anthony Raj on 26-41967 at St. Joseph's Church, Mysore and according to her they lived together as husband and wife till 16-10-1977. They were last residing in Bangalore. A boy and a girl are born to her out of the wedlock. She has further averred that when the charm of married life faded, the respondent started ill treating her. She has particularly averred that she was ill treating by her husband during the months Oct. 1975, Dec. 1975, Mar. 1976'and Oct. 1977. She also averred in her petition that her husband committed sodomy on her and sought for dissolution of marriage.
3. The husband remained absent during hearing. The petitioner filed an affidavit in proof of her allegations made in the petition; and the learned Presiding Officer relying on the averments in the, affidavit proceeded to pass a decree as prayed for. He did not even observe that the decree was subject to confirmation by this Court in his judgment and order as required under S. 14, read with S. 17 of the Divorce Act. Thereafter, however, a memo was filed by the learned Counsel appearing for the petitioner pursuant to which a reference under S. 17 of the Divorce Act is made to this court for confirmation of the decree for divorce by the succeeding Presiding Officer, by a letter addressed to the Registrar dt.20-41982 and it is that way that this reference has come up for consideration before this Court.
4. Section 17 of the Divorce Act lays down that every decree for dissolution of marriage made by a District Judge, shall be subject to confirmation by the High Court. It further states, that cases for confirmation of a decree for dissolution of marriage should be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail; or (where the number of the Judges of the High Court is two) by a Court composed of such two judges, and in case of difference the opinion of the senior Judge shall prevail. The Section further provides that the High Court, if it thinks that further enquiry or additional evidence is necessary, may direct such enquiry to be made or such evidence to be taken the result of such enquiry and additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or pass such other order as the Court deems fit.
5. It is true that the burden of proof in these proceedings under the Divorce Act is as in a Civil case and not as in a Criminal case. It should be proof by preponderance of probability and not beyond reasonable doubt. It is also necessary to caution that graver the charge made, the greater should be the degree of proof that is required to satisfy the court. (Vide Roland Prem kumar v. Mrs. Jyotsna ILR (1980) 2 Kant 1444.)
6. In the instant case, it is seen that the petitioner has filed an affidavit sworn by her before the Sheristedar, II Munsiff Court, Bangalore on 30-6-1981, in proof of the averments made in the petition.
7. Order 19, R. 1 C.P.C. speaks of the power of the Court to order any point to be proved by affidavit. It states:
'Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court think reasonable.'
Thus, it is clear that a Court has the power for sufficient reason to order that any particular fact or facts may be proved by affidavit. It does not enable the court to direct that a case be proved by filing affidavit (Vide B. N. Munibasappa v. Gurusiddaraja, AIR 1959 Mys 139).
8. On going through the order-sheet of the trial court, we find that on 30-6-1981 the Court has written in the order-sheet 'objections finally. Not filed. Respondent and Counsel absent. Placed ex parte.'
On the next date of hearing, that is on I7-81 the Court has observed in the order sheet 'Petitioner and Counsel absent when called at 3 P.M. Call on 14/7.'
On 14 -7-1981, the court, has written 'petitioner's evidence'. Petitioner files affidavit. To hear on 21/7.'
On 21/7 the court writers Heard. Order on 23/7'.
On 23/7 the case was adjourned to 24/7 and on 24/7 'Order was pronounced in the open court.'
9. Thus, we find that the court did not make any order for sufficient reasons, directing the party that a particular fact or facts in this case should be proved by affidavit. In the course of his judgment, however, the Presiding Officer has observed in Para 4 of the Judgment that:
'The petitioner was permitted to file affidavit to prove the allegations made in the petition.'
This is not true to facts and it is not borne out by the order-sheet.
10. We take this opportunity to point out that when there are grave allegations of cruel treatment' desertion and sodomy in the petition by the petitioner, it is settled law that they cannot be directed to be proved by filing an affidavit. Section 14 of the Divorce Act specifically states that 'the court should be satisfied on the evidence.' The expression 'evidence' is defined in S. 3 of the Evidence Act. It states:
'Evidence' means and includes -
(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact: under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
Section 14, of the Divorce Act, as stated above, specifically states that the court should be satisfied on the evidence that the case of the petitioner is proved. Hence the court can neither direct a party to prove the allegations on mere affidavit of the party nor can it permit any affidavit to be read as evidence. Evidence has to be recorded in the manner contemplates under-R. 4 or R. 5 of 0. 18 C.P.C. as the case may be. In the instant case, the court has not even directed the party to prove any factor facts by affidavit; but even so, has held that the case of the petitioner is proved by mere affidavit. This procedure followed by the court is highly illegal and arbitrary. We deprecate it.
The matter of dissolution of marriage under the Indian Divorce Act is dealt with solemnity. Marriage among Christians is held sacred. The Christian maxim 'Let no man separate whom God has joined' shows the sanctity and solemnity of marriage. That is why a decree for dissolution of marriage has to be confirmed by the High Court and it is further specifically provided in this behalf that three Judges should sit to confirm the decree. The Presiding Officer of the trial Court, however, has taken the matter so lightly as to think that the petitioner can prove the grave charges like sodomy by filing an affidavit.
11. We are really dismayed to find the perfunctory and cursory way in which the Presiding Officer has dealt with this proceeding. He has not even cared to look into the relevant provisions of the Act. He does not even note in the judgment that the decree for divorce is subject to confirmation by this Court. The disconsolate and desultory manner in which fie has written the one page order shocks the judicial conscience. In para-5 of the Judgment, this is what he has observed:
'Section 10 of the Divorce Act provides for dissolution of marriage at the instance ofss the wife. One of the grounds stated wherein is, sodomy or bestiality. It should be stated here, this is one of the grounds alleged by the petitioner. The petitioner has also alleged desertion, which is again a ground for divorce under S. 10 of the Act. In the absence of defence and rebuttal evidence, it appears to me, there is absolutely no reason to disbelieve the petitioner's case and consequently the petition has to be allowed as prayed for.'
That makes it clear that he is not aware of the relevant provisions of the Act and that he is innocent of the points to be raised in a proceeding for dissolution of marriage. He has not even cared to read the evidence, however meager it may be to come to his conclusion. It is needless for us to point out that a Presiding Officer of the trial court should be guarded against such perfunctory and disconsolate conduct while dealing with a serious matter like dissolution of marriage.
12. Hence, we are constrained to send back the records with a direction to the learned Judges, City Civil Court, Bangalore to hold further enquiry by recording additional evidence by examining witnesses before the court or in his chamber as the ease may be, and certifying the same send back the records with his opinion to the High Court for consideration of confirmation of the decree for dissolution of marriage, within reasonable time. Thereafter the matter should be put up for confirmation before this Court as is required under S. 17 of the Divorce Act. Send back the concerned records forthwith to the trial court.
13. Order accordingly.