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Lalit Lazarus Vs. Smt. Lavina Lazarus and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 201 of 1978
Judge
Reported inAIR1979MP70; 1979MPLJ184
ActsDivorce Act, 1869 - Sections 10 and 17; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 7, Rule 7
AppellantLalit Lazarus
RespondentSmt. Lavina Lazarus and anr.
Advocates:K.P. Varma, Adv.
Cases ReferredDastane N. G. v. S. Dastane
Excerpt:
.....offence is grave, so ought the proof to be clear, and that even in these days there is a stigma in adultery, nevertheless views on adultery have changed and it no longer generally entails the serious social consequences that in some former times resulted from its discovery. dastane air 1975 sc 1534 and it has been held, while considering a case under hindu marriage act, that the proceeding under the act being essentially of a civil nature, the word 'satisfied' means satisfied on preponderance of probability and not satisfied beyond reasonable doubt. 1972 itself is a strong circumstantial evidence to prove that she is guilty of adultery. we are satisfied that there is no collusion between the parties, there is no unreasonable delay in presenting the petition and the petitioner has not..........prior to its presentation, but evidence of acts of adultery or of other acts tending to establish adultery subsequent to the date of the petition is admissible for the purpose of showing what inference the court ought to draw from evidence of previous acts of familiarity.' in halsbury's laws of england, 4th edition, volume 13, at para 717 it has been further observed that generally amendments of charges should refer to acts, occurring before the petition is filed of which evidence has been obtained since that date, especially where the amendment raises a charge of behaviour, but there is no special practice of the family division prohibiting the addition of an amendment containing an allegation that could have been made when the petition was filed. the position of law, therefore, seems.....
Judgment:

C.P. Sen, J.

1. The case has come up before the Full Bench for confirmation of the decree nisi for dissolution of marriage granted by the DistrictJudge under Section 10 of the Indian Divorce Act, 1869.

2. The parties in this proceeding areChristians. The petitioner's case is that he is employed as Director-cum-Psychologist in the Educational and Vocational Guidance Centre run by E.L. Church at Chhindwara. The respondent No. 1 Lavina Lazarus was married to the petitioner according to the Christian rites at Indore in Dec. 1971. After the marriage the respondent No. 1 lived with the petitioner and his family members at Chhindwara for a few days, Thereafter at the instigation of the parents of the respondent No. 1 she started demanding that the petitioner should break relations with his family members and reside separately with her. When the petitioner did not agree with this, she reacted violently and held out the threat that either she would commit suicide or poison the petitioner and his family members. In a meeting of the Church Council, Chhindwara, convened on 2-9-1972 Lavina Lazarus was asked to improve her behaviour. She, however, left for Indore, She again visited Chhindwara from time to time on 13-10-1972, 23-10-1972 and 31-10-1972. On the first occasion she was accompanied by her parents and on the subsequent occasions accompanied by certain rowdy elements of Indore who indulged in acts of violence at Chhindwara. On 17-3-1973 at about 3 a. m. the respondent No. 1 along with same other persons from Indore came to Chhindwara and entered the house of the petitioner. The petitioner and his family members were abused and threatened. The neighbours came and intervened. The petitioner and his brother lodged criminal complaints in respect of these incidents, Under the circumstances, it has become humanly impossible and unsafe for the petitioner to resume cohabitation with the respondent No. 1 whose conduct has become intolerable and because of her behaviour the petitioner has been injured in his social and moral standings. He, therefore, prayed for a decree of divorce by filing a petition on 21-12-1973 in the Court of District Judge, Chhindwara. Since the notice of the petition could not be served under ordinary process, the notice was published in newspaper Nai Duniya of Indore. The respondent No. 1 then moved this Court for transfer of the [petition from Chhindwara to some other Court as it was not safe for her to visit that place. By order dated 15-7-1974 this Court hi MCC No. 107/74 transferred the case to the Court of District Judge, Jabalpur, but the respondent No. 1 did not appear and she was proceeded '-x parte, The petitioner moved an application for leave to amend the petition and the amendment was allowed and the respondent No. 2 Kamal Samuel was permitted to be joined as a co-respondent. As per the amendment the petitioner has further alleged that the respondent No. 1 is leading an adulterous life with the respondent No. 2. She is living with him for the last near about 2'/s years with result that she has given birth to a female child also, A fresh notice was also issued to the respondent No. 2 and that too by publication in Nai Duniya daily of Indore. Even then the respondents remained absent and respondent No. 2 was also proceeded ex parte. The petitioner examined himself and 2 other witnesses in support of his petition,

3. The learned District Judge observed that the ground regarding adultery was brought in by amendment during pendency of the petition on 30-7-1976. According to him, there is no bar to such pleadings being incorporated subsequent to the presentation of the petition in case such developments take place or come to the notice of the petitioner at a later stage, The petitioner has proved that the respondent No. 1 is guilty of adultery. He relied on the statements of the petitioner Lalit Lazarus (AW. 1) and Richard Phillips Titus (AW. 2) duly corroborated by Dr. Shankuntalabai of Indore who was examined on commission. He, therefore, came to the conclusion that the respondent No. 1 was living an adulterous life with the respondent No. 2 and she had begotten a child out of their illicit relationship, The- only flaw in the evidence is that in the pleadings it was alleged that a female child was born while the petitioner and his witness Titus claimed to have seen male child, but this discrepancy was of no consequence. He, therefore, passed a decree nisi and (sic)warded the case to this Court for confirmation of the decree. In spite of notice, the respondents have chosen to remain absent in this Court also.

4. The first question to be considered is whether the decree on the ground of adultery could be granted when this ground was incorporated subsequently by amendment of the petition. The ordinary rule is that the rights of the parties must be determined as at the data of the action and not on the basis of the rights which accrued to them after institution of the suit. The Supreme Court in Rameshwar v. Jot Ram (AIR 1976 SC 49) has held as under (at p. 52) :

'It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement.

Courts can, however, take note of subsequent events and mould the relief accordingly, but this can be done only in exceptional circumstances. Rights vested by statute cannot be divested by this equitable doctrine.'

In P. Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409, it has further held as under (at p. 1410):

'For making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed'.

In that case the plaintiffs suit for eviction on the ground that he required the suit accommodation for starting business was negatived because of the subsequent event. However, he was permitted to amend his plaint to seek the relief of eviction on other grounds. The Supreme Court has approved the following 2 decisions. The first is Patterson v. State of Alabama (1934) 294 US 600 that 'where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts,' The second case is Ramji Lal v. State of Punjab, AIR 1966 Punj 374 (FB), in which it was observed 'Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for includinga prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment and a fresh suit by him would be so barred by limitation'.

5. Rayden on Divorce, 12th Edition Volume I at page 192, has observed under heading 'Adultery after petition' as follows -- 'The petition must be based on adultery prior to its presentation, but evidence of acts of adultery or of other acts tending to establish adultery subsequent to the date of the petition is admissible for the purpose of showing what inference the Court ought to draw from evidence of previous acts of familiarity.' In Halsbury's Laws of England, 4th Edition, Volume 13, at para 717 it has been further observed that generally amendments of charges should refer to acts, occurring before the petition is filed of which evidence has been obtained since that date, especially where the amendment raises a charge of behaviour, but there is no special practice of the Family Division prohibiting the addition of an amendment containing an allegation that could have been made when the petition was filed. The position of law, therefore, seems to be that divorce on the ground of adultery could be allowed to be incorporated in the petition subsequently by amendment provided the ground existed at the time of filing of the petition. Here, in the present case Richard Phillips Titus (AW. 2), who is a resident of Indore, knows the parents of the respondent No. 1. According to him, for the last 2/3 years he has been seeing the respondents living together as husband and wife in Ushaganj locality of Indore and he is on visiting terms. Both are teachers in the convent school. Through their relationship, the respondent No. 1 has got a son aged about 2 1/2 years and besides she was pregnant when his evidence was recorded on 3-12-1976, which means that the son was born sometime in the middle of 1974 which shows that they had developed illicit relationship at least about a year prior to the birth of the child, that is, by middle of the year 1973. The present petition has been filed on 21-12-1973 and, therefore, the ground of adultery was available when the petition was filed.

6. The next question to be considered is whether the petitioner has proved that the respondent No. 1 is guilty of adultery. Previously the view was that the matrimonial offences have to be proved by petitioner beyond reasonable doubt but recently the view has been modified and it has been held that petitioner is only required to prove his case by preponderance of probabilities and the degree of probability depends on the gravity of the offence, Rayden on Divorce in Vol. 1 at page 193 has observed 'But a suit for divorce is a civil and not a criminal proceeding and the analogies and precedents of criminal law have no authority in the courts administering divorces; they are civil tribunals. It is wrong, therefore, to apply an analogy of criminal law and to say that adultery must be proved with the same strictness as is required in a criminal case. As far as the standard of proof is concerned, adultery, like any other fact on which irretrievable breakdown of marriage is concerned, may be proved by a preponderance of probability, and although it has been said that in proportion as the offence is grave, so ought the proof to be clear, and that even in these days there is a stigma in adultery, nevertheless views on adultery have changed and it no longer generally entails the serious social consequences that in some former times resulted from its discovery.' Halsbury in para 562 has further observed that adultery must be proved to the satisfaction of the court, that is on a preponderance of probability; but the degree of probability depends on the subject matter, and, in proportion as the offence is grave, so ought the proof to be clear. Divorce is a civil proceeding and the analogies of criminal law are not apt. It seems that the Supreme Court has also veered round to this view in the recent case of Dastane N. G. v. S. Dastane AIR 1975 SC 1534 and it has been held, while considering a case under Hindu Marriage Act, that the proceeding under the Act being essentially of a civil nature, the word 'satisfied' means satisfied on preponderance of probability and not satisfied beyond reasonable doubt.

7. Direct proof of adultery can rarely be given. Even if given, it is suspect and is apt to be disbelieved. The accepted rule, therefore, is that circumstantial evidence is all that can normally be expected in proof of the charge. The circumstances must be such as lead to it by fair inference, as a necessary conclusion; andunless this were so, no protection whatever could be given to marital rights. In the present case, the statement of the petitioner Lalit Lazarus (AW. 1) has been corroborated by Richard Titus (A.W. 2), Titus is a resident of Indore. Both have stated that the respondent No. 1 has begotten a male child out of her illicit relationship with respondent No. 2. Titus has further stated that she was pregnant. She is living apart from the petitioner since Oct. 1972 and thereafter the petitioner had no access to her. Of course, such an oral evidence can always be given but the same is corroborated by the statement of Dr. Shakuntalabai, who was examined on commission. According to her, the respondent No. 1 gave birth to a female child on 25-11-1976 in her Maternity Home and she had disclosed the name of respondent No. 2 to be her husband. In support the Doctor has filed an entry from the birth register (Ex. C-1A) corroborating her statement. Under these circumstances, giving birth to a child when the petitioner had no access to the respondent No. 1 since Oct. 1972 itself is a strong circumstantial evidence to prove that she is guilty of adultery. Ray-den at page 207 has observed that if the wife had given birth to a child, and it was proved to the satisfaction of the Court by admissible evidence that the husband could not possibly be the father, that was sufficient proof of the wife's adultery. The evidence so led by the petitioner has been accepted by the learned District Judge to be sufficient to prove that the respondent No. 1 is guilty of adultery. There is nothing on record which will make us to differ with the view taken by the District Judge. There is no reason why the statement of Dr. Shakuntalabai coupled with the certificate filed by her should not be believed. The respondents in spite of the notice have not appeared and shown cause as to why the decree should not be affirmed. There is also no impediment in affirming the decree. We are satisfied that there is no collusion between the parties, there is no unreasonable delay in presenting the petition and the petitioner has not condoned the guilt of the respondent No. 1. Therefore, the decree has to be affirmed.

8. Accordingly, the decree nisi is made absolute granting a decree for divorce to the petitioner under Section 10 of the Act. In the circumstances of the case, there shall be no order as to costs.

However, the petitioner is directed to deposit the paper book cost of Rs. 18.20/-.


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