S.K. Ray, J.
1. On 22-5-56 the appellant in both these appeals was wedded to the respondent. They are Bramhins by caste, and their marriage was a sacramental one. The marriage did not run smoothly for long, and entered into a troubled phase. At the time of this marriage, the husband was a student in the college. At his village home, where he took his bride after marriage, remained his mother, his younger brother, and a married sister. Ultimately, the appellant left the house of her husband on 10th of December, 1957, and went to reside with her parents. The parties differ as to the cause of such desertion. According to the appellant, she was compelled to flee on account of intense mental torture to which she was subjected by the inmates of her husband's house,as she had not brought sufficient dowry along with her. According to the husband, she developed illicit intimacy with one Ram Narayan and committed adultery with him, and lastly left the house of her own accord in company with her paramour.
2. On 20th of January, 1958, the respondent (husband) initiated proceedings under Section 10(1)(f) of the Hindu Marriage Act, 1955, praying for a decree for judicial separation. This proceeding was numbered as O. S. 3/58. The appellant appeared and contested and denied the allegations of adultery levelled against her. During the course of this proceeding a daughter was born to the appellant. The husband amended his application for judicial separation by making the supplementary allegation that this daughter is an illegitimate issue born out of adulterous connection of the appellant with Rama Narayan. This amendment was allowed and the appellant filed her additional written statement denying these fresh allegations. The appellant contested the said proceeding and as the order-sheet of that case would indicate, she took steps on 5-2-61 for issuance of summons on her witnesses obviously to participate in the trial. The case was set down for final hearing on 8-9-61. On that day the appellant did not appear and her counsel Sri P.C. Misra entered no instructions and filed a letter, alleged to have been written by the appellant to him (proved in this case as Ext. 1). The case was heard ex parte that very day, and was posted to 9-9-61 for judgment. On that day an order was passed declaring that the husband is entitled to a decree for judicial separation from his wife.
3. On 23rd/27th November, 1962, the appellant filed an application for rescinding the decree for judicial separation purporting to be one under Order 9, Rule 13, C. P. C., but it was treated as one under Section 10(2) of the Hindu Marriage Act, and disposed of as such. On the basis of this application, Misc. Case No. 1/63 was registered. This case has been dismissed by the common judgment out of which both these aforesaid appeals arise. M. A. No. 103 of 1965 is from that part of the judgment by which the Misc. Case No. 1/63 was dismissed.
4. Subsequently on 19-10-63 the respondent filed an application under Section 13(1) (i) and (viii) of the Hindu Marriage Act for divorce. This proceeding was numbered as O. S. 35 of 1963. This proceeding was heard analogously with the aforesaid Misc. Case No. 1/63 and both proceedings were disposed of by a common judgment by the 1st Additional District Judge of Cuttack. The suit for divorce has been decreed. M. A. No. 59/65 is from this decree.
5. The ex parte decree for judicial separation was passed in O. S. 3/58 on theground that the appellant had, after the solemnisation of her marriage with the respondent, sexual intercourse with one Rama Narayan. This ground is covered by Section 10(1)(f) of Hindu Marriage Act 1955. Evidence substantiating this ground was adduced ex parte, and was not subject to cross-examination.
6. The proceeding for divorce (O. S. 35/63) is based on two grounds, namely, (a) that the petitioner is living in adultery, and (b) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years after passing of the decree for judicial separation.
7. It is clear from the narration of the facts given above that if the Misc. Case No. 1/63 succeeds and the decree for judicial separation is set aside, then the decree for divorce cannot be granted on the ground that there has been no resumption of cohabitation as between the parties for a period of two years or upwards after passing of the decree for judicial separation in a proceeding to which they were parties. The proceedings for judicial separation must be restored to its pre-trial stage and the appellant must be given an opportunity to contest the same. I will, therefore, deal with Misc. Case No. 1/63 which is the subject-matter of M. A. No. 103/65.
The petition which was filed in O. S. 3/58 claimed the relief to rescind the decree for judicial separation. It was in fact one envisaged under Section 10(2) of the Hindu Marriage Act, and also so treated by the lower court and the parties. The respondent also filed objections to this application praying for . its dismissal. The main contentions of the petitioner in that application are contained in paragraphs 12 to 17 which are quoted herein below:
'(12) That the opposite party agreed to reconciliation and to live with the petitioner, but at the same time, wanted the petitioner to drop out of the proceeding so that the judicial separation proceeding would terminate in his favour and Thereafter both of them would live together. The aforesaid arrangement for getting the proceeding decreed ex parte was explained to the petitioner to be beneficial for her interest which she believed in good faith. The opposite party also gave out that since such a proceeding has been initiated andproceeded so far, it will otherwise affect is career, in case the same is withdrawn or dismissed.
13. That in view of the aforesaid arrangement and understanding as between her and the opposite party the petitioner did not like to contest the matter any further and accordingly wrote a letter to her advocate Sri P.C. Misra. It is submitted that the petitioner had reliance on her husband all through and believed him in goodfaith as a devoted Hindu wife in spite of a series of injustice which had been done to her.
14. That the opposite party had access to the petitioner during the pendency of the proceeding for judicial separation and thereafter and the petitioner who believed her husband and had faith in him and had to submit to his whims from time to time under the circumstances narrated above.
15. That in accordance with the arrangement and understanding as stated in paragraphs 12 and 13 above, the opposite party lived with the petitioner in their house at Rajnagar, P.S. Rajnagar, P.O. Kerara, District Cuttack where she has given birth to another baby on 16-7-62 born out of the sexual intercourse of the opposite party with the petitioner. It is submitted that after an ex parte decree for judicial separation was obtained under the aforesaid circumstances, the opposite party has cohabited with the petitioner and as such the said decree has become ineffective and infructuous.
16. That the petitioner submits that the rights of the respective parties which flowed from the marriage and supposed to be under suspension after the decree for judicial separation were restored by the aforesaid conduct of the parties.
17. That the ex parte decree for judicial separation was never intended to be given effect to nor in fact the same was acted upon by the parties inasmuch as the decree was obtained under express arrangements between the parties.'
The appellant's letter to her lawyer Sri P.C. Misra requesting the latter not to proceed further in the case is dated 7-9-61 and has been proved as Ext. 1. It recited that her husband, the respondent, approached her on 29-8-61 and again on 2-9-61 and broached the subject of compromising the proceeding regarding judicial separation. It was settled between them that the judicial separation proceeding should be decreed and thereafter he will live with her as her husband in amity as before, and that she believed in this assurance of her husband and having complete faith in such assurance she did not contest the proceeding for judicial separation any further. This letter, Ext. 1, was filed by the appellant's lawyer along with a memo. The contents of this letter (Ext. 1) ostensibly show that the appellant did not contest due to some understanding or arrangement between her and the respondent.
8. I will now refer to the relevant provisions of Hindu Marriage Act, to determine if the appellant is entitled to ask for rescission of the decree of judicial separation.
The material portions of Section 10 of the Hindu Marriage Act, germane to the point under consideration, may be quoted:
'Section 10(1). Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party-
(a) .....; or
(b) .....; or
(c) .....; or
(d) .....; or
(e) .....; or
(f) has, after the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.'
9. Section 23 of the Hindu Marriage Act runs as follows:--
'Section 23(1). In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in Clause (f) of Subsection (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(c) the petition is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.'
This section imposes vital conditions on the power and duty of the Court in the matter of granting any relief under the Act. Refore any relief including the relief of judicial separation is granted the Court must proceed to examine all the circumstances in the light of all the Clauses (a) to (e), even if the defendant is absent, because the absence of the defendant may be due to collusion. Clauses (a) to (e) of Sub-section (1) of this section are cumulative in operation, and the Court must pivot its mind on each matter contained in each of the clauses, and must be satisfied with regard to such matters in the manner contemplated in those clauses before it can pass any decree for judicial separation or any other relief obtainable under any of the provisions of this Act. The language employed in Sub-section (1) unequivocally indicates that the latter part of Clause (a) and Clauses (b) to (e) impose an absolute bar to the grant of any relief under the Act. In evidence of his satisfaction which the section enjoins that the Court shall reach, the Court should indicate that he has considered the various bars provided in those clauses and that they do not exist.
Sub-section (2) provides that after the Court comes to its satisfaction that there is no absolute bar preventing grant of any relief under the Act, it has to proceed to do its further duty contemplated in that sub-section, viz., the duty to make every endeavour to bring about reconciliation betwen the parties, where it is possible so to do, consistent with the nature and circumstances of the case.
It has been judicially held that Subsection (1) of Section 23 of the Hindu Marriage Act is mandatory. That is also clear from the concluding words of Subsection (1), viz., 'in such a case, but not otherwise'. It will be incompetent for a Court to grant any relief under the Act if the conditions under Clauses (a) to (e) of Sub-section (1) of this section are fulfilled. This is clear from the opening part of Sub-section (1) of this section, 'if the Court is satisfied'. The Court must reach its satisfaction about the matters specified in Section 23, irrespective of whether a spouse proceeded against under this Act is defended or not. The Supreme Court in the case of Mahendra v. Sushila, AIR 1965 SC 364 has said,
'A court has to pass a decree in the proceeding (under the Hindu Marriage Act) only when it is satisfied about certain matters specified in Section 23 (of the Act).'
As to the nature and extent of such satisfaction of the Court I can do no better than to quote a passage from the judgment of Lord Macdermott delivering the judgment of the House of Lords in the case of Preston Jones v. Preston Jones, 1951 AC 391:--
'The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The terms of the statute recognize this plainly, and I think it would he quite out of keeping with the anxious nature of its provisions to hold that the Court might be satisfied, in respect of aground for dissolution, with something less than proof beyond reasonable doubt.' To the same effect is the following passage from Halsbury's Laws of England, 3rd Edn., Vol. 12, page 292, Article 576 :--
'A decree must be refused, even if the suit is not defended, where there is no jurisdiction to make it, or where the allegations put forward are not proved; for judgment by default, in matrimonial causes.' The doctrine embodied in the aforesaid quotations has been followed by Indian authorities. The weight of responsibility cast on the Court under Section 23 is heavy. In this connection a passage from Mulla's Hindu Law, 12th Edn., page 877 may be quoted:-- 'A decree in any matrimonial proceeding under the Act (Hindu Marriage Act) is to be made only upon strict proof of the ground relied upon by the petitioner, and it makes no difference whether the proceeding is defended or not. In an ex parte case it is not enough for one of the parties to come forward and say something exactly following the terms of the Act. The proper course for the court, in an undefended proceeding, is to ask sufficient questions to make it reasonably clear what the precise facts are on which the petitioner relies for the relief that is claimed. The court must watch vigilantly to see that the evidence on which it acts is such only as it is entitled to receive. The fact that by allowing the proceeding to go undefended both the parties appear to be equally anxious to see that the relief is granted is precisely a reason why the court should be strict as to proof. .....The court must also satisfy itself that the safeguards provided in the section are duly observed and insist upon corroborative evidence in proof of a matrimonial offence.'
10. It appears from the ordersheet in O. S. 3/58 (suit for judicial separation) that the appellant was very much earnest in resisting this proceeding. She had three days before the ex parte decree prayed for issue of summons on her witnesses, one through court and two others as per list, under Order 16, Rule 8 for which requisites were filed. In this background her lawyer files a memo of no instruction on 8-9-61 with a copy of her letter which is Ext. 1 in this case. The contents of this letter have been set out above. It alleges that she is not fighting this case because of an arrangement between her and her husband and that in pursuance of that arrangement she is suffering a decree for judicial separation to be passed against her. This document was before the Court. It smacks of collusion and/or fraud on part of the respondent. The order dated 8-9-61 shows that the Court was not cognizant of his own duty and responsibility under Section 23 of the Hindu Marriage Act, nordoes he appear to be aware of the absolute bar imposed by Clauses (a) to (e) of Section 23(1) to the exercise of his jurisdiction in passing a decree for judicial separation in certain contingencies. He was also oblivious of his duty under Subsection (2) thereof. Clause (c) of Sub-section (1) provides that if the court is satisfied that the petition is prosecuted in collusion with the respondent then the Court shall not grant a decree for judicial separation. Clause (e) of that sub-section also provides that if there is any other legal ground against grant of relief of judicial separation, like fraud, or undue influence or coersion then the court must not grant the relief. If collusion or fraud existed and if the Court was satisfied about their existence, then it would lose jurisdiction to grant the relief sought for. Evideuce was before him, at least prima facie, that the wife was not proceeding in the matter, because she had come to an arrangement, not to do so, with her husband. In face of this Ext. 1, the court's duty was to be, first of all, satisfied that the prosecution of the petition for judicial separation from and on 8-9-61 was not in collusion with the appellant (the respondent in that case), or not by defrauding her or that there did not exist any legal ground which disentitled the husband to the relief claimed. The ex parte decree for judicial separation was undoubtedly passed by the Court without his being satisfied about the matters specified in Section 23 as will appear from the order-sheet in O. S. 3/58 printed at pages 132 to 145 of the paper-book.
The petitioner wants to rescind thedecree for judicial separation parsed inO. S. 3/58, on the ground inter alia, thatit was not passed after consideration of allthe matters provided in Section 23 of theAct. The lower court has refused to rescind holding that the petitioner has failedto prove that there was a resumption ofmarital relations between her andher husband subsequent to thepassing of the decree for judicial separation, but she has not beenable to establish it. But the decree forjudicial separation having been passed without being satisfied as to the matters specified in Section 23, as already stated, amountsto passing of the same in illegal exerciseof his jurisdiction and is ineffective in law.It is, therefore, just and reasonable thatsuch a decree for judicial separation shouldbe rescinded. Nothing can be more justand reasonable than to rescind a decreewhen it is quite clear that that decree hasbeen passed in violation of statutory mandate.
Sub-section (2) of Section 23 of the Hindu Marriage Act provides that 'before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with thenature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.' The order of judicial separation, which is in the paper-book, does not show that the Judge was aware of this provision of law and discharged the duty cast upon him. The provision to my mind is mandatory. The words 'before proceeding to grant any decree it shall be the duty of the court in the first instance' confers a power coupled with an express duty. It is in the interest of the stability of the society that marriages are not to be easily broken and disrupted. It is in the interest of public policy to maintain the continuance of matrimonial relations and to prevent, as far as possible, disruption of the same, at the instance of any of the parties to a marriage. The Court is given the power to make reasonable efforts to prevent disruption of marriages and thereby advance the social objective and stability. This power is exercised not only for the benefit of the parties to the marriage, but also of their off-springs, if any. In view of this, the power coupled with the duty are mandatory. It is true that while conferring the power the Statute has given a measure of discretion to the Court. That discretion is indicated bv the words 'in every case where it is possible so to do, consistent with the nature and circumstances of the case'. The court, however, must proceed to discharge its duty under Sub-section (2) and then if the nature and circumstances of the case so warrant, may desist from reconciliation effort. Because of this discretion, conferred in a limited number of cases, the Court is not relieved at all from exercising its power and discharging its duty under the sub-section. In the instant case, the Court was not aware of its duty and power under Sub-section (2) and never proceeded to exercise that power. The order of judicial separation, therefore, is also vulnerable on account of tbe non-compliance with the mandatory provisions of Subsection (2) of Section 23.
For the aforesaid reasons, it appears to me to be just and reasonable that the decree for judicial separation must be rescinded and the Court must be asked to consider all the matters contained in Section 23 of the Hindu Marriage Act before passing the decree for judicial separation. The Court is to start from the stage where it was on 9-9-61, and proceed from that stage in accordance with law.
Misc. Case No. 1/63, is, therefore, allowed, and the decree for judicial separation is rescinded, and the matter is remitted to the court below for disposal in accordance with law, and in accordance With the observation made above.
11. The present suit (O. S. 35/63) relates to an application for divorce, made under Section 13(1), Clauses (i) to (viii). Clause (viii) has been deleted by amendment and re-enacted as Sub-section (1-A) of that section of the Hindu Marriage Act. The grounds for divorce, as already stated, are (i) that the appellant is living in adultery, that is to say, has committed adultery even after passing of the decree for judicial separation, and (ii) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of the decree for judicial separation in a proceeding to which they were parties.
The second ground must fail, because I have already set aside the decree for judicial separation and remitted the case back for redisposal according to law.
Any party to a marriage can straightway ask for dissolution of the same by a decree for divorce on the sole ground of adultery. For such a petition a prior decree for judicial separation need not be passed. Of the two grounds for divorce in the present case, the only ground now remains for serious consideration is the question of adultery. Even though on the first ground the husband may not be entitled to a divorce, he is still entitled to it, if he can be held to have made out the ground for adultery. If I agree with the learned court below that the husband has been able to establish adultery, I would have to dismiss the present appeal of the wife even though her petition for rescission of the decree for judicial separation is allowed. The charges of adultery levelled against the wife relate to a period prior to the decree for judicial separation, and a period subsequent to it. Adultery before judicial separation was made, related to the extra-marital relation of the wife with one Rama Narayan. The decree for judicial separation was made on the basis of the finding that the petitioner (wife) had sexual intercourse with Rama Narayan after her marriage and the daughter that was born on 28-12-58 was illegitimate. The lower court in dealing with the application for divorce has accepted those findings 'of fact. He has said:
'These findings of fact cannot now be controverted as long as that decree is not set aside by a competent court. As is rightly agreed by both the learned Advocates, it is beyond the scope of the present inquiry to consider the events which took place prior to 9-9-61. It is, however, necessary to consider the evidence as to what had actually transpired shortly before the passing of the ex parte decree, as this has some effect in appreciating the evidence relating to the subsequent events.'
It is clear from this extract from the judgment of the lower court that his finding of adultery subsequent to the passing of the decree for judicial separation has received strong corroboration from the finding of adultery reached in the proceeding for judicial separation. He has further come to the conclusion that the wife led an adulterous life before she came to Raj Nagar in March, 1962, and not thereafter. Ninth of September, 1961, is the date when the decree for judicial separation was passed. The wife gave birth to a daughter on 16-7-62 which means that she must have conceived sometime in October, 1961. The lower court has believed that this conception took place through some persons other than her husband. In coming to this conclusion he has considered two documents, viz., Exts. Q and B and certain inferences. It is contended by learned counsel for the appellant that the lower court has reached his finding that the charge of adultery has been established without applying the test of standard of proof necessary in such matters, and that the evidence of P.Ws. 1 to 4 has not been discussed at all, the evidence of P.W. 5 has not been considered at all, and the evidence of P.W. 6 has not been scanned. It is further argued that he has wrongly made the evidence of O.P-Ws. 1 to 10 as the sole basis for his conclusion, without corroboration, when he has disbelieved their testimony in one respect, viz., in regard to the matters under issue No. 2. These contentions are well-founded.
With regard to the onus and the standard of proof, I may quote a passage from Mulla's Hindu Law, 12th Edition, page 839. The passage runs as follows:--
'Before granting relief on the ground of adultery the court must be satisfied beyond reasonable doubt that the matrimonial offence complained of is established. There is always the presumption of innocence and it is for the petitioner to prove the allegations relied upon. The respondent, on the other hand, bears the burden of establishing affirmative defences set up in reply...... What is required is thatthe court must be satisfied beyond reasonable doubt that the charge is established.' Whether the evidence offered by the respondent in proof of adultery is upto the aforesaid standard is to be determined by considering all the evidence tendered by respective parties together with the defence set up in reply. I do not think that the lower court has done that or adhered to the strict standard of proof required by law for establishing matrimonial offences. I have also already indicated that the mind of the lower court has patently been affected by finding of adultery in the proceeding for judicial separation and has been inclined to believe the woman to be adulterous by nature in the context of the finding of adultery committed by her in the final order in the proceeding for a decree for judicial separation. It must be remembered here that Ext. 1 contains averments, which if proved true, would amount to condonation of prior adultery, and if so, the further question for considerationwould be if the fact of such prior adultery would be a relevant consideration. This aspect has not been kept in mind by the court and the pertinent questions arising out of Ext. 1 have not been considered. The commission of adultery after 9-9-61 has, in my opinion, in view of the aforesaid aspects and circumstances, not been appropriately disposed of in the light of the legal principles regarding the onus and standard of proof.
For the aforesaid reasons, I would also set aside the decree for divorce and remit the same to the lower court for a fresh disposal in accordance with law having in mind the principles and doctrines indicated above.
In the result, therefore, both the appeals succeed and the decisions of the court below are set aside and both the matters are remitted back to the lower court for disposal in accordance with law.
No costs of this Court. Further costs shall be in the discretion of the lower court.
A petition under Section 24 of the Hindu Marriage Act has been filed in this Court on 15-5-70 for pendente lite maintenance and litigation expenses. This petition shall be sent down to the lower court along with records and the lower court shall dispose of it by passing appropriate orders thereon.