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Juel Topo Vs. Smt. Nirmala Noorgadi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberM.C.C. No. 465 of 1983
Judge
Reported inAIR1986MP25
ActsDivorce Act, 1869 - Sections 10 and 17
AppellantJuel Topo
RespondentSmt. Nirmala Noorgadi
Advocates:Vilson B. Singh, Adv.
Cases ReferredLalit v. Lavina
Excerpt:
- - in spite of the best efforts of the petitioner, he could not know the name of the said punjabi gentleman and so he has not been joined as a co-respondent. we have heard the learned counsel and gone through the record and we are satisfied that decree nisi for dissolution of the marriage has been rightly passed by the learned distt. we are also satisfied that there is no collusion between the parties nor the petitioner connived at for the commission of the adultery by the respondent with a punjabi gentleman through whom she has now begotten a child......her parents' house in search of her and he was surprised to find that she was living with a young punjabi gentleman as his wife. since then she has given birth to a child through that punjabi gentleman. the petitioner made several attempts to bring her back but she refused, on the other hand she sent a registered notice dated 8-11-1982 that she is prepared to take a divorce from the petitioner. a registered lawyer's notice was sent by the petitioner to the respondent saying that she was living as a wife of a punjabi gentleman and has begotten a child but this was not replied, so the present petition was filed. the notice was duly served on the respondent but she remained absent and was proceeded ex-parte. in spite of the best efforts of the petitioner, he could not know the name of the.....
Judgment:

C.P. Sen, J.

1. The District Judge, has passed a decree for dissolution of marriage under Section 10 of the Divorce Act, 1869, and referred the case to this Court for confirmation of the decree under Section 17 of the Act.

2. The parties are Christians and they were married on 30-1-1979 at village Khirwakocha, Distt. Ranchi, Bihar. They lived together as husband and wife for about a week at Hoshangabad. On 9-2-1979 the respondent ran away from the house of the petitioner without informating him. Since then she has deserted him. The petitioner husband filed a petition under Section 10 of the Act alleging that the respondent since the solemnization of her marriage with the petitioner has been guilty of adultery. His case is that on 20-2-79 he went to her parents' house in search of her and he was surprised to find that she was living with a young Punjabi gentleman as his wife. Since then she has given birth to a child through that Punjabi gentleman. The petitioner made several attempts to bring her back but she refused, on the other hand she sent a registered notice dated 8-11-1982 that she is prepared to take a divorce from the petitioner. A Registered lawyer's notice was sent by the petitioner to the respondent saying that she was living as a wife of a Punjabi gentleman and has begotten a child but this was not replied, so the present petition was filed. The notice was duly served on the respondent but she remained absent and was proceeded ex-parte. In spite of the best efforts of the petitioner, he could not know the name of the said Punjabi gentleman and so he has not been joined as a co-respondent. Petitioner Juel Topo examined himself as P.W. 1 and proved his case. His evidence has gone unrebutted. Relying on his evidence, decree nisi for dissolution of the marriage has been passed by the Distt. Judge.

3. A notice of this proceeding was sent to the respondent but she has not appeared. A Full Bench of this Court in K. J. v. K. AIR 1932 Nag 395 held that it was clear that the respondent was avoiding appearance in Court in order to escape being examined as a witness or an adverse inference drawn upon his refusal to be so examined and therefore no notice of the proceedings was necessary. That was only continuation of the original petition. This apart, there is a registered letter of the respondent Ex. P. 3 wherein she had given her intention for dissolution of the marriage. We have heard the learned counsel and gone through the record and we are satisfied that decree nisi for dissolution of the marriage has been rightly passed by the learned Distt. Judge. There is no reason why the statement of the petitioner should not be accepted. The petitioner's statement has gone unrebutted and there is no evidence to the contrary. We are also satisfied that there is no collusion between the parties nor the petitioner connived at for the commission of the adultery by the respondent with a Punjabi gentleman through whom she has now begotten a child. Since the name of the alleged adulterer is not known, he has not been joined as a co-respondent. Another Full Bench of this Court in Lalit v. Lavina, AIR 1979 Madh Pra 70 has held that previously the view was that the matrimonial offences have to be proved by the petitioner beyond reasonable doubt but recently the view has been modified and it has been held that the petitioner is only required to prove his case by preponderance of probabilities and the degree of probability depend upon the gravity of the offence. Unless the facts alleged by the petitioner were true, the respondent would not have deserted him soon after their marriage.

4. Accordingly, decree nisi is made absolute granting a decree to the petitioner under Section 10 of the Act. Parties to bear their own costs. However, the petitioner is directed to deposit paper-book cost of Rs. 8.75/-.


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