1. This reference is by the Principal City Civil Judge, Bangalore City, in Matrimonial Case No. 233 of 1983, on his file, seeking confirmation of the judgment and decree for dissolution of marriage dated 10-6-1983.
2. The learned Judge, who has rendered the judgment, in para-7 of his judgment, has observed:
'After perusing the averments in the petition and hearing the learned Counsel or the petitioner, petitioner was directed to verify his case by an affidavit. Accordingly he has filed the affidavit.'
and in para-8 of his judgment, the learned Judge has observed :
'I have perused the affidavit.'
and the learned Judge has proceeded to decide the matter solely on the basis of the affidavit filed by the petitioner.
3. The question is: 'Whether the decree for dissolution of marriage, on the grave charge of adultery, based on an affidavit by the petitioner, without more, should be confirmed by this Court?'
4. This Court, by a decision dated 17-81984. in the case, P. Nirmala v. R. Anthony Raj, made by a Special Bench in C.R.C. No. 2 of 1982 (reported in) : AIR1985Kant47 , has deprecated the practice of the Judges passing decrees for dissolution of marriage on such grave charge as sodomy or adultery merely on affidavits. It is further directed that in all such cases having regard to the solemnity of the subject-matter and the gravity of the charge, it is incumbent on the Court to examine the parties in Court and not merely to rely on their affidavits to give a decree.
5. It is no doubt true that the learned Counsel appearing for the petitioner/husband invited our attention to the proviso to Section 51 of the Indian Divorce Act. It reads:
'The witnesses in all proceedings before the Court, where their attendance can be had, shall be examined orally, and any party may offer himself or herself as a witness, and shall be examined, and may be cross examined and re-examined, like any other witness: Provided that the parties shall be at liberty to verify their respective case in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be re examined orally as aforesaid by or on behalf of the party by whom such affidavit was filed.'
6. By reading the Section and the proviso, it becomes amply clear that where the attendance of the witness can be had, he shall be examined before Court. The proviso comes in only as an exception. On the facts of the present case, the witness was before Court. There was no difficulty at all in securing him. That being so, for detailed reasons advanced in C.R.C. No. 2 of 1982 (reported in) : AIR1985Kant47 , referred to above, it was incumbent on the learned Judge to examine him orally before the Court, especially so when Section 14 of the Indian Divorce Act clearly states that the Court should be satisfied 'on the evidence' that the case of the petitioner has been proved, and the term 'evidence' has been defined in the Evidence Act, and the manner of recording of evidence has been stated in Rule 5 of Order XVIII of the Code of Civil Procedure.
7. A Special Bench of the Nagpur High Court consisting of Pollock. Vivian Bose and Digby, JJ., in the case. Kishore Sahu v. Mrs. Snehprabha Sahu AIR 1943 Nag 185 has discussed the aspect where the affidavit evidence should be allowed under Sections 47 and 51 of the Indian Divorce Act.
8. Section 47 of the Indian Divorce Act reads:
'Every petition under this Act for a decree of dissolution, of marriage, or of nullity of marriage, or of judicial separation shall state that there is not any collusion or connivance between the petitioner and the other party to the marriage.
The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in manner required by law for the verification of plaints, and may at the hearing be referred to as evidence.'
Section 51 of the Indian Divorce Act is already extracted above.
9. Their Lordships, speaking on the aspect have observed:
'In our opinion, an important question of principle is involved here. Section 47, Divorce Act, provides that statements in the petition which have been duly verified may be referred to -is evidence at the hearing, and the proviso to S. 51 states that 'the parties 'shall be at liberty to verify their respective cases in whole or in part by affidavit. The Act consequently enables facts to be proved by affidavit evidence, and in extreme cases, perhaps even by verified statements, (though we do not decide that). But so does the Code of Civil Procedure. In spite of that, however, affidavit evidence is rarely accepted in Courts of law on matters which require proof, except on interlocutory matters or on subsidiary questions, and even then it is usual to require regular proof when there is contest. In our opinion the rule should be applied no less strictly in matrimonial cases.
We gather that what weighed with the learned Judge is the fact that the petition is not opposed and that the facts are admitted but it is in just such cases that the danger of collusion is greatest. It has always to be remembered that divorce proceedings and proceedings for nullity are not like ordinary civil suits in which to parties are litigating their own rights and seeking decrees to which they are indisputably entitled if the facts they allege are proved. There is no right of divorce. No one is indisputably entitled to a decree of nullity. The Courts have discretion in every case even when all the necessary facts are clearly proved. The slightest bad faith, any suspicion of collusion, the least want of candour, entitles the Court to stay its hand. The State is vitally concerned in the institution of marriage and insists on strict proof and a close investigation before it will permit the tie to be dissolved. Provision is made for a loosening tip of the normal procedure to prevent injustice in extreme cases but such cases must be extreme and should be very rare and always, adequate reasons for any departure from the normal should be given by
10. In Premchand Hira v. Bai Galal AIR 1927 Born 594 Marten, C. J., referred to the last portion of Section 47 of the Indian Divorce Act which provides that the statements contained in the petitions may at the hearing be referred to as evidence and said:
'Therefore technically, the learned Judge was entitled to refer to the allegations in the petition as evidence. On the other hand, speaking for myself, I think the ordinary practice, which is followed in the English Divorce Court, viz., that the parties give viva voce evidence, should invariably be followed in every case unless there are some very good reasons to the contrary.
11. In Stones v. Stones, (1935) ILR62 Cal 541 Costello, J., was still more emphatic when he said:
'I say most emphatically that, in my opinion, it is altogether undesirable, and indeed contrary to established practice to accept evidence on affidavit - except as regards evidence of the petitioner - except as regards evidence other than that of the petitioner in some very exceptional circumstances, and not otherwise.'
12. It is needless for us to point out that Section 7 of the Indian Divorce Act enjoins on the Courts in India in proceedings under the Indian Divorce Act to give relief on principles and rules which in the opinion of the said Courts are as nearly as may be confirmable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.
13. In Mrs. Hazel Arnone v. George Thomas Robert Arnone, : AIR1966Ker34 (SB), the question of proof by affidavit came for consideration again before a Special Bench. His Lordship, M. S. Menon, C. J., speaking on the subject, has observed:
'In England the Court only allows the 'fringe' of a case, not its substantial parts, to be proved by affidavit, and under the Matrimonial Causes Rules, 1057, the normal rule is that the witnesses at the trial of any matrimonial cause shall be examined orally and in open Courts,'
Justice Gopalan Nambiyar agreed with the Chief Justice that normally the question at issue should be proved by oral evidence adduced before the Court in Divorce cases.
14. In Mrs. Agnes Cecillia Gome (Gannon), v. Lancelot Ashley Gome, : AIR1964Cal28 , a Full Bench of that Court has pointed out, inter alia, in para-7 of the judgment thus:
'................ As so often occurs in human affairs, however, the difficulty ties in drawing the line. But the Court while exercising its discretion in matrimonial causes, must have regard not only to the rights and liabilities of the matrimonial person wronged and of the wrongdoer respectively inter se but also to the interest of society and public morality, and to discourage vice and immorality.'
15. The Courts shall also see that there is no collusion between the parties nor connivance nor undue delay. For all these reasons, we are of the firm view that in a case like dissolution of marriage on a grave charge like adultery, it is expedient and necessary in the interest of justice, that the Court shall record the evidence as contemplated under Rule 5 of Order XVIII of the Code of Civil Procedure, and should not render its judgments merely on the basis of proof by affidavit.
16. The allegation made in the present case is that the wife is guilty of adultery. It is a very grave charge. It is necessary, therefore, that the husband have been examined in the open Court especially so when his presence could be easily had.
17. In the circumstances, therefore, following the earlier decision made by a Special Bench of this Court on 17-8-1984 in Civil Referred Case No. 2 of 1982 and for reasons discussed above, we ate of the considered view that the procedure followed by the learned Judge is not legal and proper. Hence, there is no question of confirming the final decision passed by him for dissolution of the marriage. Accordingly, the matter is sent back to the Principal City Civil Judge, Bangalore City, with a direction that he shall now examine the petitioner/husband and record such other evidence as he produces and record his opinion and send the same with records for confirmation to this Court, if he conies to the conclusion that there should be dissolution of the marriage on the ground that the wife after the solemnization of the marriage, has been guilty of adultery.
18. Ordered accordingly.