1. These proceedings under Section 17 of the (Indian) Divorce Act have been placed before us for confirmation of a decree passed by the District Judge, Jabalpur, granting divorce as applied for by the petitioner (wife) on the grounds of desertion and adultery.
2. The facts relevant are that the petitioner Nalini was lawfully married to the respondent C. H. Issac on 8-2-1970 at Hangton Prayer Room Church, Jabalpur, the wife being then about 19 to 20 years of age and the husband about 22 to 23 years of age. Undisputedly, the petitioner and the respondent profess the Christian religion and are domiciled in India. For about 10 months from the date of the marriage, parties lived at Bilhari and cohabited. According to the petitioner, earlier at one occasion, the respondent had turned her out of his residence and, therefore, she had to live in her own quarter at Vaidyanath Nagar. Later on, after about a month, the respondent, however, again took her back along with her two younger sisters, Chandrakanta aged about 20 years and Anita aged about 18 years, who also lived with her in the same house.
3. The allegation was that the respondent developed illegitimate intimacy with Chandrakanta and they started living in adultery. A letter written by the respondent, indicating his affair with Chandrakanta, was also discovered by the petitioner. This development disturbed the relation of the petitioner with her husband and they used to quarrel with each other. When the petitioner was pregnant and carrying for about six months, the respondent again forcibly turned her out of his residence. The petitioner wanted to take her sisters Chandrakanta and Anita along with her while going to her own quarter atVaidyanath Nagar, but the respondent did not allow her to do so and permitted Anita (the second sister) alone to go with the petitioner. Thus, Chandrakanta remained in the house of the respondent. Since then, the petitioner and the respondent are living separately and conjugal cohabitation has not been resumed. While living at Vaidyanath Nagar, after about 3 or 4 months, the petitioner, who was already pregnant, gave birth to a female child in June 1971. The respondent, however, took the child from her when it was about 1 1/2 years in age. During the period of association with the respondent, Chandrakanta gave birth to two children.
4. The petitioner also formed an association with one Edward George, a friend of the respondent. She also gave birth to a child during the said association with Edward George. The petitioner, however, filed an application against the respondent before the District Judge claiming divorce on the grounds of desertion and adultery. Parties led evidence, both oral and documentary.
5. The learned District Judge, after due appreciation of the evidence brought on record, has found that the respondent developed illegitimate intimacy with Chandrakanta. Naturally, due to that, the relation between the parties became strained. The District Judge has further found that the respondent forcibly turned the petitioner out of his house and started living in adultery with Chandrakanta. During the period of the said adulterous association with Chandrakanta, he had two issues, one of which, however, died immediately after the birth, and the other child is still alive. The respondent stated that he had written the aforesaid letter in an attempt to divert the response of his wife towards himself which, according to him, she was not giving. The respondent expected that on seeing such a letter indicating the affair of her husband with Chandrakanta, she might become much more attached to him This explanation, however, under the facts and circumstances of the case, did not find favour with the learned Judge of the District Court. After holding the respondent guilty of deserting his wife and also of living in adultery with Chandrakanta, the learned District Judge has passed the decree for dissolution of the marriage. While doing so, the District Judge has observed that despite the fact that the petitioner was also living in adultery with EdwardGeorge, it was a fit case for grant of divorce looking to the interest of the parties and the children.
6. After going through the entire material on record and keeping in view the undisputed facts and circumstances, we are satisfied that the findings recorded by the learned District Judge are quite reasonable and proper and there is no scope for taking a different view by us. We are also satisfied that the petition has not been presented or prosecuted in collusion with the respondent. In the circumstances of the case, the marriage has utterly broken down, The grounds of desertion and adultery have been fully established.
7. The only point which needs consideration before confirming the decree passed by the lower Court is whether the petitioner, who is also guilty of adultery, is entitled to the relief claimed. The proviso to Section 14 of the (Indian) Divorce Act, though does not create a bar to the grant of a decree for dissolution of the marriage in favour of the petitioner, who is also guilty of adultery, but provides that the Court shall not be bound to grant such a decree in favour of the petitioner, who is also found to be guilty of adultery.
8. Thus, it is clear that the mere fact of bigamy having been committed by the spouse, who is asking for the exercise of discretion, does not in itself operate as a bar to such exercise but the default on the part of the petitioner has to be primarily weighed in the balance with other matters when the Court is considering the question of the exercise of its discretion The circumstances in which the petitioner committed the default must be carefully taken into consideration. In the present case, it was the respondent who created the situation resulting in the break-down of the marriage by developing illicit intimacy with Chandrakanta and by deserting the petitioner, he created such circumstances which compelled the petitioner to do so.
9. It is true that the binding sanctity of marriage is to be given due importance and has to be maintained, but it would be half true to say that the same has to be maintained at all costs by ignoring the other social considerations. Thus, in our opinion, a true balance has to be maintained in between respect for the binding sanctity of the marriage and the social considerations which make it contrary to public policy to insist on themaintenance of a union which has utterly broken down. It is noteworthy that according to the present trend of decisions, the social considerations have operated to induce the Courts, both in England, and India, to exercise discretion even in favour of the spouse guilty of adultery in the facts and circumstances of a particular case, wherein, in earlier time, a decree would certainly have been refused.
10. In the cases reported in Nugent v. Nugent, AIR 1934 All 782 and Wilson v. Wilson, AIR 1930 Cal 729 followed in Bourke v. Bourke, AIR 1932 Sindh 18, the Courts exercised discretion even in favour of the guilty wife under the facts and circumstances of each case.
11. When the marriage has utterly broken down and there are no prospects of reconciliation between the husband and wife, no purpose will be served fay refusing the exercise of discretion on the ground that the petitioner was also guilty of adultery. In the present case, the wife's adultery has been conduced by the conduct of the husband. There is one more circumstance in her favour that she has frankly admitted that she was living with Edward George and has given birth to a child. In our opinion, it would not be proper to compel four persons to continue to live in adultery by refusing the decree of divorce. We are also inclined to exercise discretion in favour of the petitioner under the facts and circumstances of the case by considering the interest of the possible children which might otherwise be born out of the wedlock and the probability of one party to the proceedings marrying the third party involved, if enabled to do so, by being accorded freedom from the marriage tie. We would, however, like to make it clear that the Court is not expected to just put a rubber stamp by exercising discretion in favour of a guilty party in each and every case. The exercise of discretion will always be dependent upon the facts and circumstances of each case and, in our opinion, the present case is such where we should exercise discretion in favour of the petitioner-wife.
12. We, therefore, confirm the decree made by the District Court. Under the facts and circumstances of the case, there will be no order as to costs. Parties will bear their own costs throughout.