1. This appeal arising out of a Matrimonial Cause, is by the husband, who along with the Respondent-wife had filed a joint-petition for divorce by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955 ('Act' for short) and is directed against the order dated 6-2-1985 made inM.C. No. 15 of 1984, on the file of the Civil Judge, Udupi, rejecting the petition. The wife is arrayed as Respondent; but there is no contest in this appeal.
2. In their petition the parties averred that their marriage was solemnised on 11-3-1979 in accordance with the Hindu Shastraic rights at Sri Janardhana Devaru Temple at Pangala; that they lived as man and wife at the appellant's house at Krishnarajanagar in Mysore District till 17-9-1979; that they have no issues by the marriage; that thereafter they were not able to live together; and that Respondent has since been staying-away with her parents at Mallur villageof Udupi Taluk. It was further averred that the parties had mutually agreed upon the dissolution of their marriage and that both of them had voluntarily consented to the dissolution. After lapse of the statutory period of six months the matter came up before the Court-below on 5-2-1985. The Court made efforts to bring about a reconciliation ; but no reconciliation was possible. Both the parties deposed before the Court in support of their prayer for dissolution of the marriage by mutual consent and reiterated the averments in the petition.
3. Learned Civil Judge, however, entertained doubts about the permissibility of grant of relief in the case. On a consideration of the matter the Court-below declined relief. The reasoning in support of this conclusion had better be stated in its own words :
'In the instant case, if the Petition and the evidence of P.Ws. 1 and 2 are considered in the light of the above provisions, it is apparent that except the oral testimony of the parties and the allegation in the Petition, there is no material to corroborate their case that the marriage has been solemnized, and that the averments in the Petition are true. The say of both the petitioners as P.Ws. 1 and 2 shows that they have not been able to live together. In that regard they have not made out a clear case. The reason behind the incompatibility between them is neither alleged nor proved. The evidence of the close relatives of the parties is essential to comply the requirement of Section 13(B)(2) of the Hindu Marriage Act 1976. The parties have not chosen to do so. No reason is forthcoming for this omission. Merely because the Petition is not withdrawn by the parties, and on the mere say of the parties that the Petition is filed with mutual consent, it is not sufficient to grant decree of divorce. Even though Section 13-B of the Hindu Marriage Act is introduced to facilitate the married couple to get the divorce by consent, it calls upon the parties to satisfy the Court that the marriage has been solemnized as alleged and that the averments in the Petition are true. The averments in the Petition in this case is too vague as already discussed. There is no reason why the petitioners who stayed for 6 months together have not been able to live together thereafter. Under these circumstances, it is not a fit case to grant decree of divorce.'
4. We have heard Sri K.S. Vyasa Rao, Learned Counsel for the Appellant-husband and Sri G. G. Sastri, Learned Counsel for the Respondent-wife. The parties were also present in Court. We made efforts, with the assistance of the Learned Counsel, to ascertain what was ailing their marriage and whether this marriage could not, after all, be saved. No reconciliation was possible. The information that we gathered, some aspects of which may not be necessary to be set-out in the interest of the parties themselves, disclosed what is perhaps an irredeemable situation. We questioned the parties closely with a view to ascertaining whether they were, or any one of them was, acting under any compulsion. We gathered the impression that both of them are convinced of the necessity - and propriety - of what they were doing. The appeal, therefore, requires to be disposed of in accordance with law.
5. Section 13(B) of the Act was introduced by the Amending Act 1968 in 1976. The Statement of Objects and reasons accompanying the Bill provides :
'The Law Commission was requested to examine the matter and they have presented the Fifty-ninth Report which contains their recommendations. The Bill seeks to amend both the Acts aforesaid so as to implement, with necessary modifications, the recommendationscontained in that Report. The Committee on Status of Women in India have generally supported the amendments proposed by the lawCommission and suggested, inter alia, the incorporation of a suitable provision for mutual consent in the Hindu Marriage Act more or less on the lines of a provision in that behalf in Section 28 of the Special Marriage Act. It is, however, felt that when once the parties have chosen to move the Court for divorce by mutual consent, it is not necessary to make them wait for a further period of one year to obtain relief.
The objects of the legislation are mainly : (1) to liberalise theprovisions relating to divorce ; (2) to enable expeditious disposal ofproceedings under the Act; and (3) to remove certain anomalies and handicaps that have come to light after the passing of the Acts.'
When two persons, by mutual consent jointly move for dissolution of their marriage, they must show that their marriage had been solemnized; that they have been living separatelyfor a period of one year or more ; that they have not been able to live together; and that they have mutually agreed that their marriage should be dissolved. The opening words of Section 13(B)(1) - 'Subject to the provisions of this Act', inter alia, attract the conditions of Section 23 in so far as they are appropriate to a Petition under Section 13(B). Section 23(1)(bb) provides that the consent should not have been obtained by force, fraud or undue influence.
Section 13(B)(,2) provides that the Court shall 'on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the Petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.' Though with the advent of Section 13(B), the grant of divorce is liberalised and the parties enabled to rid themselves of the un-endingfor ment of a hopeless and otherwise irredeemable but legally lingering marriage, however, having regard to theinexorable finality or a divorce and the severity of its con-sequences and having regard to the adverse effect and influence of broken-homes on the well-being of the society at large, the mandate of the law is that the Court has to be 'satisfied' that the 'averments in the Petition are true'. Law also provides a focus-penitential for the parties to retrace the steps within 6 months and nodissolution of the marriage is to be ordered before the expiry of that period.
In proceedings of this nature the Court is not merely a disinterested on-looker or an unconcerned umpire as is traditionally assumed in an adversary system of litigation but is enabled to take-up a more positive and constructive role and make such 'inquiry' as it thinks fit. This is a delicate and sensitive area of Court's function and must be handled with imagination and concern.
6. But the Court-below, has found fault with the parties for not examining their parents and other near relations. It has even held that the marriage itself is not proved. It is no doubt true that the material placed before the Court should be such that the Court is enabled to believe in the existence of the circumstances averred or hold that theirexistence is so probable that a prudent man ought, in the circumstances, to proceed on the assumption that they exist. But absolute certainty amounting to demonstration of the truth of the matter is a standard neither possible to be achieved nor intended to be attained. Judicial belief must rest on evidence and all reasonable inferences from it. The means of proof is evidence, although there are other sources, namely, judicial-admissions, judicial notice andpresumptions.
The standard of proof expected in civil cases is a balance of probabilities. Even within this formula wide variations exist according as the seventy of theconsequences that flow from a particular finding. The more serious the allegations or more serious the consequences, the higher will be the degree of proof required, although it may not reach the criminal standard. But to say that thepetition deserves to fail by reason of non-examination of the parents or other near relations of the parties is something which incurs criticism of having been too broadly stated.
Section 20 of the Act requires every Petition presented under the Act shall be verified in the manner required by law for theverification of plaints and the averments may at the hearing referred to as evidence.
7. The parties entered the box and reiterated the substance of their case. It was permissible for the Court - and indeed in the facts of a given case, it may even be its duty - to put to them such questions as the Court thought would bring-out the truth of the matter to reassure itself, interalia that the consent was expressed by free-will and that the parties while desiring to break-up the sanctity of marital ties were not yielding to spasmodic impulse or generalise an individual unpleasant experience. In the present case the Court could have required the parties to have their parents or other near relations examined. It did not do anything of the kind; but merely contented itself to sit as an on-looker till the end and, after the parties closed their case, to pronounce on the inadequacy of the evidence. The same material might have satisfied another Judge. Appreciation of evidence is the assessment of weight to be attached to the evidence; it is a matter of human experience and knowledge of human affairs and more than all, one of broad common sense. Each case has its own particularities and turns on its own facts. The, Court-below, if it felt that the matter called for a greater degree of re-assurance, could have called for additional material.
8. In view of the circumstances of this case, it is some-what un-realistic to think that the parties had not established their earlier marriage. Thedisinclination on the part of the Court-below to accept their case was not justified. Both the parties affirmed on oath the averments made in the petition. We are of the opinion that there were nocircumstances in the evidence which would raise any legitimate doubts about the voluntariness of the consent they had expressed in the petition. As stated earlier we also questioned them closely to eliminate the possibility of miscarriage of justice. We think that the averments in the petition, supported as they are by the testimony on oath by both the parties, should entitle them to the order they have sought.
9. In the result, therefore, this appeal is allowed and in reversal of the order of dismissal made by the Court-below, the joint-petition under Section 13(B) of the Act filed by the parties is allowed and there will now be a decree ofdissolution of their marriage. Ordered accordingly.