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V. Barnard Vs. Mrs. Averil May Tresslor Barnard - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1947Mad437; (1947)2MLJ134
AppellantV. Barnard
RespondentMrs. Averil May Tresslor Barnard
Excerpt:
- - as a general rule service of divorce proceedings or proceedings connected with matrimonial affairs is required to be made personally, and substituted service is not usually ordered unless the court is satisfied that every possible step was taken to effect personal service. whilst this does show that the respondent was aware of the proceedings in the chingleput district court after the decree had been granted, it also shows her desire to be represented or to appear in this court, and, it follows, that she may well wish to have an opportunity of appearing at the hearing of the petition for dissolution itself......of the indian divorce act for confirmation of a decree for dissolution of marriage granted by the learned district judge of chingleput on the 13th february, 1946. since it is impossible to confirm the decree and there are matters of irregularity appearing, it is desirable to state the relevant facts and circumstances.2. the husband is the petitioner seeking dissolution on the ground of adultery of his wife, the respondent. according to the petition she deserted him, that is to say, she left his house in chingleput, about april, 1943 and it would seem that she joined the women's auxiliary corps (india). the petition states that about a year before the date of the petition, which was instituted on the 10th october, i945, the husband was informed that the wife had been court-martialled for.....
Judgment:

Frederick William Gentle, C.J.

1. This matter comes before us under Section 17 of the Indian Divorce Act for confirmation of a decree for dissolution of marriage granted by the learned District Judge of Chingleput on the 13th February, 1946. Since it is impossible to confirm the decree and there are matters of irregularity appearing, it is desirable to state the relevant facts and circumstances.

2. The husband is the petitioner seeking dissolution on the ground of adultery of his wife, the respondent. According to the petition she deserted him, that is to say, she left his house in Chingleput, about April, 1943 and it would seem that she joined the Women's Auxiliary Corps (India). The petition states that about a year before the date of the petition, which was instituted on the 10th October, I945, the husband was informed that the wife had been court-martialled for improper behaviour at Vizagapatam. It also alleges that before she left his house her conduct was such that he was suspicious of her morality. In the petition it is further stated that the wife, at that time, was employed at Kharagpur, her address being Care of Officer Commanding No. 35/E.C. Platoon W.A.C. (1), Kharagpur, and it is also said that the present whereabouts of the lady were unknown to the husband.

3. On the 6th October, 1945, the husband affirmed an affidavit stating that he was not able to know the wife's address, nor the fact whether she was alive or not. It would seem that this affidavit was filed for the purpose of obtaining an order for substituted service of the proceedings by means of an advertisement in an English daily newspaper. From the documents which have been placed before us it would seem that an enquiry was made from the authorities in Delhi seeking the 'whereabouts of the wife, and on the 10th October, 1945, a communication was written from Delhi giving the address of the wife as that which was set out in the petition. Subsequently a letter was addressed to the Officer Commanding W.A.C. (i), Kharagpur, to which a reply was sent that the respondent was not serving at that place and that she was unknown. Upon that information the learned District Judge on the 5th December, 1945, directed that service should be effected by a publication in the Civil and Military Gazette, Lahore. The reason for the choice of that newspaper is unknown. The last known address, or rather the last address of which any information was given, accurate or inaccurate, was Kharagpur, which is many hundreds of miles from Lahore and is not in that part of India where the Civil and Military Gazette circulates.

4. The information upon which the learned District Judge acted when he directed substituted service by advertisement was meagre in the extreme. As a general rule service of divorce proceedings or proceedings connected with matrimonial affairs is required to be made personally, and substituted service is not usually ordered unless the Court is satisfied that every possible step was taken to effect personal service. It does not appear here that any step was taken at all to effect personal service. In that respect, I have no hesitation in coming to the conclusion that there was no service properly effected upon the respondent-wife.

5. During the course of the hearing a letter was placed in front of us which was addressed to the Deputy Registrar of this Court by a firm of solicitors in Madras stating that they had been instructed by a firm of solicitors in London on behalf of the respondent, and notice of appearance on her behalf was attached to that letter. Whilst this does show that the respondent was aware of the proceedings in the Chingleput District Court after the decree had been granted, it also shows her desire to be represented or to appear in this Court, and, it follows, that she may well wish to have an opportunity of appearing at the hearing of the petition for dissolution itself. In my opinion there was no proper service and there was no opportunity afforded to the respondent of being heard ; the order for substituted service should not have been made and the service purported to be effected by that process was irregular.

6. I now come to the merits of the petition. The husband and wife are Christians and were married according to the Christian Marriage Act. The proceedings for divorce were instituted pursuant to the Indian Divorce Act, which would indicate that they are domiciled in this country. I have already sufficiently set out the relevant allegations in the petition. According to the record the petition first came before the learned District Judge on the 16th January, 1946. It does not seem that any evidence was given before him other than that of the husband who, of course, was the proper witness to prove the marriage and the issue, two sons. But this testimony regarding adultery was confined only to hearsay of an extreme nature, namely, that he had been informed that she had been court-martialled for misconduct, whatever that may mean. Certainly his testimony, so far as adultery is concerned, was not only inadmissible but was entirely inadequate. Nevertheless, the learned District Judge appears to have decreed dissolution.

7. Shortly thereafter he would seem to have realised that his decree was not one which could have been properly passed and, therefore, he directed a further hearing at which, in addition to the petitioner, there were two other witnesses examined. One of them, Sadayan, stated that he saw the respondent with a European soldier in Vizagapatam about October, 1943 ; each had his or her hand on the other person's shoulder ; they went to a boat, the wife sat upon the soldier's lap. The witness continues that feeling suspicious he ' looked still that way and sometimes later they were seen together in a compromising manner.' The other witness is named Anthoniswami. His testimony was to the effect that in July, 1942, he saw the respondent with a European soldier somewhere near the Moore Market or Park; they sat down on a chair and were talking in a jolly manner ; it.was getting dark and they were then found together in a compromising manner. The expression ' compromising manner' is used by both the witnesses. Neither was asked any information as to what he meant by ' compromising manner ' ; and there is no testimony at all as to what conduct caused the witnesses to consider the two persons to be acting in a ' compromising manner.'

8. Each witness should have been asked further details or further information enabling the Court to come to a conclusion whether adultery was or was not committed. On the evidence which has been given, quite apart from the question of service, it is impossible to confirm the decree for dissolution which the learned, District Judge of Chingleput granted. In these circumstances dissolution cannot be confirmed.

9. This matter will be remanded back to the learned District Judge of Chingleput for him to act in. accordance with law and in accordance with this judgment and to see in the first instance, if proceedings go further, that service is effected upon the respondent, and to carry out the ordinary provisions of law applicable to proceedings of this nature.

Lakshmana Rao, J.

10. I agree.

Patanjali Sastri, J.

11. I agree.


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