1. This is a reference under Section 17 of the Indian Divorce. Act, 1869 (hereinafter referred to as 'the Act'), made by the learned IVth Additional Judge to the Court of District Judge, Indore, for confirmation of a decree nisi passed by her under Section 16 of the Act.
2. The petitioner, Mrs. Neena, submitted a petition under Section 10 of the Act for dissolution of her marriage with the respondent. She averred that she was married to the respondent in June 1970 in accordance with the tenets of Christian religion; that from the year 1975, the respondent started treating the petitioner cruelly by beating and abusing her and ultimately drove her out of the marital home in 1981. It was averred that the respondent was also having illicft relations with one Shobha The petitioner, therefore, filed this petition for dissolution of her marriage on the ground that the respondent was guilty of adultery coupled with cruelty.
3. On summons being served, the respondent filed a written statement admitting marriage with the petitioner and illicit relationship with Shobha. It was contended that the differences between the petitioner and the respondent were so acute that it was not possible for him to live with the petitioner. The respondent thereafter remained absent and hence, the trial Court proceeded ex parte.
4. The petitioner examined herself and also examined PW 2 Narayansingh. The trial Court, after appreciating the evidence on record, found that the petitioner was guilty of adultery coupled with cruelty. In this view of the matter, the lower Court allowed the petition filed by the petitioner under Section 10 of the Act and pronounced that the marriage of the petitioner with the respondent was dissolved subject to confirmation by this Court, as required by Section 17 of the Act. That is how the matter has come up before this Full Bench.
5. Shri Bhatia, learned counsel for the petitioner, was heard. None appeared on behalf of the respondent. The record of the case was perused. Before a decree for divorce can be passed on the grounds specified in Section 10 of the Act, the Court should be satisfied, as required by Section 14 of the Act, on the basis of evidence on record, that the case of the petitioner has been proved. Section 7 of the Act provides that subject to the provisions contained in the Act, the High Courts and the District Courts shall, in all suits and proceedings under the Act, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules, on which the Court for Divorce and Matrimonial Causes in England, for the time being, acts and gives relief. In Blyth v. Blyth (1966) 1 All ER 524, it has been observed by Lord Denning that the statute uses the word 'satisfied' and not the words 'satisfied beyond reasonable doubt'. Therefore, the Court has to be satisfied on a preponderance of probabilities and not satisfied beyond reasonable doubt as to whether from the material on record, the petitioner can be said to have established any of the grounds specified in Section 10 of the Act, for grant of relief of dissolution of marriage with the respondent.
6. Now, in the instant case, the petitioner has sought the relief of dissolution of marriage on the ground of cruelty with adultery. The petitioner has deposed that after her marriage, the respondent started beating her and ill-treating her. She deposed that the petitioner had illicit relations with one Shobha. The testimony of the petitioner is corroborated by the testimony of PW 2, Narayan Singh, who deposed that the respondent used to abuse Neena, and beat her. He further deposed that he knew Shobha, that he had seen the respondent and Shobha together, a number of times and that the respondent and Shobha were living as husband and wife. The evidence of the petitioner and PW 2 Narayansingh stands unrebutted. We see no reason to disbelieve this evidence. It is rarely possible to prove adultery by direct evidence. In view of the statements on oath of the petitioner and PW 2 Narayansingh, the petitioner, in our opinion, has made out a case for dissolution of marriage on the ground of adultery coupled with cruelty.
7. For all these reasons, we confirm the decree for dissolution of marriage passed by the learned IVth Additional Judge to the Court of District Judge, Indore. Parties are directed to bear their own costs.
8. Decree for dissolution of marriage confirmed.
9. Before parting with this case, we would like to observe that in genuine cases, the procedure prescribed by Section 17 of the Indian Divorce Act, 1869, requiring confirmation by the High Court of a decree for dissolution of a marriage made by District Judge, prolongs the agony of the affected parties even though none of the parties is desirous of preferring an appeal. We see no valid justification for continuation of this procedure especially when no such procedure is prescribed by other Acts dealing with dissolution of marriages, namely, the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955. That is why in Uttar Pradesh, by an amending Act (Act No. 30 of 1957), paragraphs one to five of Section 17 of the Indian Divorce Act, 1869 have been omitted. In our opinion, therefore, there is an urgent need for making suitable amendments in the Indian Divorce Act, 1869 as made in Uttar Pradesh by Act No. 30 of 1957.