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Deepak Bakshi Vs. Anita Mariene Faria Bakshi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberMatrimonial Reference No. 3 of 1983
Judge
Reported inAIR1985P& H111
ActsIndian Divorce Act, 1859 - Sections 10, 11, 14 and 17; Indian Christian Marriage Act, 1872
AppellantDeepak Bakshi
RespondentAnita Mariene Faria Bakshi
Cases Referred and Preston Jones v. Preston Jones
Excerpt:
.....judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a..........contents of his application under section 11 of the act, was for the reason that the respondent wife was leading the life of a prostitute and he was also not aware of the particulars of the persons with whom the adultery had been committed by her. even the two men referred to in the petition under section 10 of the act have not been impleaded as respondents for the same reason that their addresses were not known to the petitioner. the trial court, however, does not appear to have passed any order on this application (under section 11 of the act) of the petitioner.2. by now, it is well laid down that while called upon to confirm a decree for dissolution of marriage, made by a district judge under the act, the high court is entitled and rather obliged to review the whole evidence and.....
Judgment:

I. S. Tiwana, J.

1. As injuncted by Section 17 of the Indian Divorce Act, 1859 (for short, the Act), the decree of divorce granted by the District Judge, Chandigarh, against the respondent wife on account of her adulterous life, is before us for confirmation, petition husband too has made an application (dated May 27, 1983) in that regard. During trial, proceedings against the respondent were ex parte as according to the Bailiff's report, she had refused to accept notice. It may be mentioned here that the petitioner has not impleaded any of the alleged adulterers as a co-respondent and this, as peer the contents of his application under Section 11 of the Act, was for the reason that the respondent wife was leading the life of a prostitute and he was also not aware of the particulars of the persons with whom the adultery had been committed by her. Even the two men referred to in the petition under Section 10 of the Act have not been impleaded as respondents for the same reason that their addresses were not known to the petitioner. The trial Court, however, does not appear to have passed any order on this application (under Section 11 of the Act) of the petitioner.

2. By now, it is well laid down that while called upon to confirm a decree for dissolution of marriage, made by a District Judge under the Act, the High Court is entitled and rather obliged to review the whole evidence and come to an independent finding whether the facts proved on record justify the granting of the decree or not. This clearly appears to be the intention and policy behind the legislative mandate contained in Section 17 of the Act. Equally well established is the proposition that standard of proof required in divorce cases under the Act is that 'the Judge should be satisfied beyond any reasonable doubt as to the commission of the matrimonial offence'. Besides this being the clear requirement of Section 14 of the Act, it has been, as ruled by the final Court in Earnist John White v. Mrs. Kathleen Olive While (Nee Meade), AIR 1958 SC 441. In that case their Lordships of the Supreme Court while approving the enunciation of law in Lovedon v. Lovedon, (1810) 161 ER 648 and Preston Jones v. Preston Jones, 1951 AC 391, in the light of the provisions of section 7 of the Act, have ruled in no uncertain terms that:--

'In our opinion the rule laid down by the House of Lords, would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would therefore be such that if the Judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of Section 14 of the Act. The two jurisdictions, i.e. matrimonial and criminal are distinct jurisdictions but terms of Section 14 make it plain that when the Court is to be satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Courts in India would act and the reason for accepting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial causes'.

In the light of this dictum of the Supreme Court, I find that in the instant case, the evidence on record is far short of the standard of proof which can entitle the petitioner to get a decree of divorce. While saying as, though I am conscious of the fact that in such cases normally there is no direct evidence of adultery or at least the same is not easily available, yet the evidence led by the petitioner besides lacking veracity, also does not travel--in case it is to be accepted--beyond mere balance of probabilities. The District Judge does not appear to have scrutinised the evidence minutely and rather appears to have accepted it on its face value probably for the reason that the respondent had not chosen to contest the proceedings before him. The later circumstance, however, does not in any way permit the lowering down of the standard of proof required for the grant of a decree of divorce under the Act.

3. The case as set up by the petitioner in the trial Court and now pleaded before us is as follows. The parties to the litigation were married at Calcutta on December 1, 1973 in accordance with the provisions of the Indian Christian Marriage Act, 1872. There is no issue of the parties. They could rather have none as the respondent wife got herself operated much earlier to the marriage and was thus incapable of conceiving a child. After the marriage, they lived as husband and wife in Flat No. 4/1-B, Collin Lane, Calcutta. At the time of the marriage and subsequent thereto, the petitioner who is a qualified electrical and mechanical engineer, was employed with various shipping companies and on account of his duties on the ships, he had to stay away from Calcutta and the respondent during the following periods:--

i) In 1975-76 ii) In 1977-78 iii) In 1979 iv) In 1980-81 From 25-10-1975 to 17-11-1976. From 30-6-1977 to 5-7-1978. From 10-3-1979 to 17-10-1979. From 19-1-1980 to 5-1-1981.

Though the petitioner was entitled to keep his wife with him on the ship during his various assignments, yet the respondent except once in the year 1975, always evaded to join him on one pretext or the other. During the month of June, 1977, when the petitioner was employed with Gulfeest Ship Management Limited, Hong Kong, on thier ship A1 Taha, he even sent on air ticket to the respondent to join him there but she refused to do so on the ground that 'she stood committed to attend certain parties arranged by her friends'. His case further is that though he had been hearing rumors that during his absence from Calcutta the respondent had been leading an immoral and adulterous life, yet he chose to ignore all that on account of his great love and affection for her. He as a matter of fact claims to have paid no need to these remours. To support the above noted claim of his, the petitioner in his statement as P.W. 3 has talked of the following instances I think it unnecessary to refer to the various allegations made by him in the petition as the same by themselves do not constitute any evidence in the case--of immorality on the part of the respondent:--

I) 'During the summer months of 1974, one of the ceiling fans of our bed room had gone out of order. We then went for sleeping in the living room. At above mid-night time some one knocked at our door. The respondent rushed to open the door and asked who was there. The man replied that he was Engineer, When she opened the door, the man again repeated that will she not recognise the Engineer, who had picked her up from the Club when I tried to intervene, the man left that place. When I asked the respondent as to who that man was, she admitted that she had met the man at the Club and had gone out with him. But she expressed ignorance about the use of the words 'picked up' by the man. She told me that if she had heard these words, she would have pulled up that man'.

ii) 'In 1977, I received a letter from the respondent saying that she had developed friendship with a group of undesirable persons and that she has been going out for night parties and would sometime return on next morning. Letter Ex. P.W./B was written by her to me. I returned to Calcutta on 5-7-1978 after receipt of this letter, and I reached there at about 11.30 P. M. in the night. I let myself into the house and was shocked to see the respondent sitting with a fair complexioned man in a compromising position with two glasses of rum lying on the nearby table. Soon after that man ran away from there. When I asked the respondent as to who that man was, she told me that he had brought a message from one of her friends from Delhi. When I told her that I did not believe her, she lost her temper and started quarrelling with me and further told me that her personal affairs were none of mine business'.

iii) 'After the conclusion of my last contract, I returned to Calcutta around 5-1-1981. The respondent was not found at the house. When I enquired from the neighbour, I was told that she had gone out with some men. On her return I asked her where she had been. She told me that it is none of my business to question her movements and that she had the liberty to have sex with any one of her choice'.

iv) 'On one occasion, I happened to visit the respondent's flat and when I was talking to a neighbour, I came across a gentleman who was settling a bargain for having the respondent for the night for Rs. 300/-.'

4. Strange as it may seem, the instance quotted at No. (I) does not find even a remote reference in the petition filed under S. 10 of the Act. So far as the instance mentioned at No. (ii) is concerned, though it is mentioned in paragraph 15 of the petition that on petitioner's return to the Flat on July 5, 1978 at about 11.30 P.M. he found the respondent sitting in the company of a man who according to her was a friend of Dal and had come to deliver a message from her, yet surprisingly, the allegation that 'the respondent was sitting with a fair complexioned man in compromising position with two glasses of rum lying on the nearby table' is nowhere there in the petition. There is also no mention of the fact in the petition that on his telling the respondent that he refused to believe her, 'she lost her temper and started quarrelling with me and further told me that her personal affairs were none of mine business'. On the contrary, what has been stated towards the end of paragraph 15 of the petition is 'still your petitioner persuaded himself to believe the story given by the respondent though his suspicions were aroused.' Though a reference to the facts stated at (iii) above is available in paragraph 17 of the petition, yet the most material part of the statement that 'she told me that it is none of my business to question her movements and that she had the liberty to have sex with any one of her choice' is conspicuous by its absence from the contents of that paragraph. Similarly there is no reference to the facts stated at (iv) at all in any part of the petition. It is thus patent that the petitioner has tried to improve upon his pleaded case on imaginary and concocted basis. In addition to the above noted statement of his, the petitioner has chosen to place reliance on certain parts of two letters, Exhibits P.W. 3/B and P.W. 3/C, alleged to have been written by the respondent on October 17, 1977 and August 27, 1982 respectively. What is sought to be highlighted from the contents of these letters is that at least in the second one, that is, Exhibit P.W. 3/C, the respondent has admitted herself to be a prostitute. Besides the fact that these two letters stand in isolated glory as no preceding and succeeding correspondence exchanged between the parties has been produced on record, I find from the contents and tenor of these letters that they do not lend any support to the allegations leveled by the petitioner. The part of the letter Exhibit P.W. 3/C which is heavily relied upon by the learned counsel for the petitioner reads as follows:--

'In closing I will say just one more thing. When I look in the mirror and see the ravages of the past 1 1/2 years, and whenever I think of people who have proved themselves 'to be the lowest scum calling me a prostitute with impunity and referring to my poor defenseless unfortunate babies as 'bloody stinking cats', I curse you with all my heart'.

As a bare reading of the above noted paragraph of the letter itself indicates, it is how the letter has been concluded. Earlier parts of the letter clearly indicate that the respondent has been accusing the petitioner and his parents for the mess created in her life. Some of the relevant parts of this letter read thus:-

'I had allowed things to rise for the past six months because I guess in my foolishness I still thought that given enough time we might just be able to salvage something worthwhile out of the entire mess you have made of our lives. I see clearly now that this was a somewhat forlorn hope....................... In your letter you also asked me to show you a way out and that you would take it. I am afraid the one thing I am unable to do is to instill you with enough courage to stand up and fight your parents for the right to lead your own life with me provided of course that is what you wanted. The decision as to what future direction your 'life would take had to come from you without any sort of pressure from me. You also said 'given a different set of circumstances we could most probably have made a go of it'. What different circumstances could there have been? That you loved me enough to stand up for me against your parents and not let them insult your wife. That I was 15 years younger and could have borne a child to inherit family wealth. That you respected and loved me enough not to be influenced by people who were jealous of us................ That you were man enough not to denigrate your wife to all and sundry so that people are now calling me a prostitute and passing derogatory remarks about my home. No, Elgin, we met and fell in love or so I thought under a given set of circumstances and it was up to us to build a life together upon them................ I have no great concern or fears about my future--What little is left of it--as nothing can hurt me any more you made bloody sure of that'.

Reading the letter as a whole, I feel satisfied that instead of amounting to any admission of any immorality on the part of the respondent, it only indicates the level of her frustration on account of the petitioner's misbehaviour or lack of guts or courage to face his parents qua the respondent. The use of the word 'prostitute' in this letter is only symbolic in the same manner as the respondent had chosen to call her pet cats--as babies.

5. Besides the above noted evidence led by the petitioner in support of his case, he has chosen to rely on the statements of two more witnesses, i.e. R. N. Bakshi, P.W. 1 (his father) and Lt. Co. H. R. Walia (Retd.) P.W. 1. P.W. 1 appears to have been examined to support the plea that the parties last resided at Chandigarh in February, 1981 and thus the District Judge, Chandigarh, had the jurisdiction to try this petition. P.W. 2 has stated that he knows the petitioner since he also resides in the same Sector (9) of the city in which the petitioner's parents live. In September, 1981, according to him, he happened to visit Calcutta to attend the marriage of one of his relatives and before returning to Chandigarh he thought of paying a visit to the flat of the parties. When he reached there, he saw the respondent standing on the balcony of the first floor and when he was going up-stairs a middle aged man told him that he could have the lady whom he had seen standing in the balcony, for his use during the night for Rs. 200/-. He claims to have left that place out of disgust and without seeing the respondent. Strange as it may look, he never thought of conveying his experience to the petitioner except when they casually met in a clinic and the petitioner told the witness that 'he was fed up with the infidelity of the respondent' and it was on account of that that' he had shattered his heath'. I find it difficult to attach any credence to this statement of P.W. 2 which appears to have been made with a view who oblige the petitioner and more probably his parents as the two of them are living closeby. Above all this, no reference to this incident or experience of P.W. 2 in Calcutta has been made in the petition. From the reading of the evidence on record 1 form the impression that at the time of his marriage on December 1, 1973, the petitioner who was younger to the respondent by fifteen years and professed Hindu religion--the respondent was a Christian--was closer to 'life' and away from the orthodox customs and creeds of the strata of society to which he belonged and now when the tide of youth is reversed, he is out to get rid of the respondent on one pretext or the other.

6. Thus for the reason that neither the quantity nor the quality of the evidence on record is such which entitles the petitioner to the grant of a decree of divorce in his favour, I decline to confirm the decree granted by the District Judge and dismiss his applicated dated May 27, 1983. The net result is that the petitioner and the respondent continue to have their marital status of husband and wife respectively. No costs.

Prem Chand Jain, Acting C.J.

7. I agree.

Pritpal Singh, J.

8. I too, agree.

9. Application dismissed.


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