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Terence Valentine Rose Vs. Lynettee Irene and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberMatrimonial Ref. No. 1 of 1981
Judge
Reported inAIR1982P& H540
AppellantTerence Valentine Rose
RespondentLynettee Irene and anr.
Cases ReferredCyril Rowal and Gibbs v. Miss. Ellen Mabel Gibbs
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........respondent no. 1 was living with parkash masih, respondent no. 2, in a house near m. e. s. power house, ferozepore cantt. a report was lodged by the petitioner with the police, but respondent no. 1 refused to return to the conjugal home and continued to live in adultery with respondent no. 2 at house no. 2, street no. 5, ferozepore cantt.4. notice of the aforesaid petition was issued to both the respondents who put in appearance. the respondent-wife filed a written reply admitting her marriage with the petitioner but denying the rest of the allegations. respondent no. 2. parkash masih, however, did not file any written statement and it was directed that he should do so on or before jan, 20, 1981. however, on that date, none of the respondents chose to put in appearance and consequently.....
Judgment:

S.S. Sandhawalia, C.J.

1. This is a reference under Section 17 of the Divorce Act, for confirmation of the decree nisi for the dissolution of marriage granted by the learned Additional District Judge, Ferozepore.

2. Terence Valentine Rose, petitioner, had preferred the petition against his wife Lynette Irene averring that the both of them were married according to Christian rites at Kanpur on April 15, 1968. Later, both of them lived together in the residential quarters attached to the Francis Newton Mission Hospital, Ferozepore, in which the petitioner was employed. Two sons and a daughter were born out of the wedlock.

3. It was alleged in the petition that on May 6, 1980, the petitioner went to Moradabad in order to look after his ailing mother and when he returned a little more than a fortnight thereafter, he found his residential quarter locked and respondent No. 1 missing therefrom. On enquiry, he learnt that she had left the house along with their infant daughter a few days earlier and had not returned to the matrimonial home thereafter. Further enquiry thereafter revealed that respondent No. 1 was living with Parkash Masih, respondent No. 2, in a house near M. E. S. Power House, Ferozepore Cantt. A report was lodged by the petitioner with the police, but respondent No. 1 refused to return to the conjugal home and continued to live in adultery with respondent No. 2 at house No. 2, Street No. 5, Ferozepore Cantt.

4. Notice of the aforesaid petition was issued to both the respondents who put in appearance. The respondent-wife filed a written reply admitting her marriage with the petitioner but denying the rest of the allegations. Respondent No. 2. Parkash Masih, however, did not file any written statement and it was directed that he should do so on or before Jan, 20, 1981. However, on that date, none of the respondents chose to put in appearance and consequently proceedings were ordered ex parte against them.

5. In support of his case, the petitioner himself stepped into the witness box as A. W. 1 and deposed in detail with regard to the averments made in the petition. A. W. 2 K. C. Joseph, Incharge of the Administration of Frances Newton Hospital, Ferozepore, was examined to the effect that the petitioner worked there as Technician in the Radiography Department and was living with respondent No. 1 in the residential quarters attached to the Hospital. This witness gave evidence to the effect that the petitioner had complained to him against the surreptitious visits of respondent No. 2 Parkash Masih, during absence of the petitioner. The witness also stated that he had personally observed Parkash Masih, respondent, visiting the house of the petitioner whilst the latter was in Hospital in connection with his duty. He opined that he suspected illicit intimacy between both the respondents and consequently prohibited respondent No. 2 from entering the residential quarters of the Hospital. Nevertheless, thereafter, he had occasion to see both the respondents meeting each other either near the main gate of the Hospital or outside the gate of the residential premises. He further supported the petitioner with regard to latter's going away to Kanpur in May, 1980 and on his return finding that the petitioner had eloped with respondent No. 2 leaving the residential quarter locked.

6. A. W. 3 Patras, deposed about the factum of respondents Nos. 1and 2 living together in adultery in House No. 2, Gali No. 5, Ferozepore Cantt, for about three months where he had gone to visit them. He stated that respondent No. 2 had represented to him that respondent No. 1 was his wife. He also deposed that on one occasion when he had gone to the house of respondent No. 2, he found both the respondents lying in a compromising position in bed and he was warned by respondent No. 2 that he should not enter the house without knocking at the door.

7. The learned Additional District Judge Ferozepore, has closely examined the aforesaid testimony and after appraising the same accepted it as more than adequate proof of the fact that both the respondents were living in adultery. Reliance had rightly been placed on Cyril Rowal and Gibbs v. Miss. Ellen Mabel Gibbs, AIR 1933 All 427, in this context. He has concluded that on the evidence led, he was left with no doubt that both the respondents were living an adulterous life together. Consequently, he allowed the petition and passed an ex parte decree for the dissolution of marriage of the petitioner with respondent No. 1, subject to the confirmation by this Court.

8. As in the trial Court, so in the present proceedings also, the two respondents have been duly served but have not chosen to put in any appearance. Hence ex parte proceedings were ordered against them. It is the admitted position that the statutory period of six months has since elapsed.

9. After hearing the learned counsel for the petitioner, we find not the least ground to take a view other than the one arrived at by the learned Additional District Judge. The testimony of as many as three witnesses, including the petitioner himself, stands wholly unrebutted. Therefrom the only irresistible conclusion is that the petitioner is plainly entitled to a decree of dissolution of marriage.

10. In the result, we allow the reference and confirm the decree nisi. The parties, however, shall bear their own costs.

11. Order accordingly.


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