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G. Dwarakabai Vs. P. Nainan Mathews - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberO.M.S. No. 6 of 1951 and Appln. No. 4219 of 1952
Judge
Reported inAIR1953Mad800
ActsDivorce Act, 1869 - Sections 16
AppellantG. Dwarakabai
RespondentP. Nainan Mathews
Appellant AdvocatePais, ;Lobo and ;Alvares, Advs.
Respondent AdvocateParty in person
Excerpt:
- - but when an alleged old adultery is held like a damocles sword over the husband for a fresh petition for divorce, as here, no court will allow a compromise to be recorded and the decree nisi to be set aside on that ground, and grant the wife freedom for filing a fresh petition for divorce on the ground of the alleged old adultery and subsequent desertion......for recording a compromise entered into on 16-9-1952 between them and for vacating the decree nisi passed by me on 8-4-1952, and allowing the petitioner, dr. dwarakabai, to file a fresh petition for dissolution of her marriage on the very ground of adultery and desertion relied on by her for getting the decree nisi passed by me on 8-4-1952. it was prayed further that this compromise should be in no way used as a condonation by dr. dwarakabai of the old adultery and desertion alleged before. 3. i have perused the records and heard mr. v. thyagarajan, for the petitioner, & mr. p. s. ramachandra ayyar, for the respondent. i am of opinion that no court in the indian union should, under the law as it stands, use its discretion in allowing a compromise of this sort which gives the.....
Judgment:
ORDER

Panchapakesa Ayyar, J.

1. This is a petition by one Dr. Dwarakabai, M. B., B. S., aged 40, the Petitioner in O. M. S. No. 6 of 1951, a petition for dissolution of her marriage with the respondent, P. Nainan Mathews, a Master of Arts and Bachelor of Laws, aged 58, on the ground of his adultery and desertion. Her previous petition, O. M. S. No. 34 of 1946 for divorce on the ground of his attempted sodomy on her and subsequent desertion had been dismissed by Clark J. and the dismissal confirmed by Rajamannar C. J. and Viswanatha Sastri J. in appeal in O. S. A. No. 73 of 1947. In O. M. S. No. 6 of 1951, a decree nisi was passed by me 'ex parte', on 8-4-1952, on the evidence adduced by the petitioner, Dr. Dwarakabai, and her witnesses. Normally, O. M. S. No. 6 of 1951 would have come up before me on 8-12-1952 for making the decree nisi absolute. But, meanwhile, the respondent, Nainan Mathews, is said, by this petitioner, to be contemplating filing a petition against making the decree nisi absolute on the ground that he had not committed adultery or deserted the petitioner but that he had been given a large sum of money by the petitioner as bridegroom price and that it was fear regarding her demanding payment back of this money labelling it as a loan to him, that had made him remain 'ex parte' on 8-4-1952.

2. Today, a petition has been filed by both the parties for recording a compromise entered into on 16-9-1952 between them and for vacating the decree nisi passed by me on 8-4-1952, and allowing the petitioner, Dr. Dwarakabai, to file a fresh petition for dissolution of her marriage on the very ground of adultery and desertion relied on by her for getting the decree nisi passed by me on 8-4-1952. It was prayed further that this compromise should be in no way used as a condonation by Dr. Dwarakabai of the old adultery and desertion alleged before.

3. I have perused the records and heard Mr. V. Thyagarajan, for the petitioner, & Mr. P. S. Ramachandra Ayyar, for the respondent. I am of opinion that no Court in the Indian Union should, under the law as it stands, use its discretion in allowing a compromise of this sort which gives the petitioner liberty to rake up the old adultery even after the compromise and resumption of the status of husband and wife, as the basis of a fresh petition for dissolution of her marriage. The policy of the law is, of course to see that marriages are, as far as possible, kept intact, and divorces only granted wherever unavoidable. The law of divorce in the Indian Union, is not so easy or wide as in some of the States in the United States of America, and Courts in the Indian Union will not contemplate divorces freely, much less frivolously. If there is a bona fide agreement between a husband and a wife, and the wife really condones her husband's past adultery, and wants the marriage to continue, that will be a generous, and even praiseworthy act which the Courts will be only too ready to appreciate and support. But when an alleged old adultery is held like a Damocles sword over the husband for a fresh petition for divorce, as here, no Court will allow a compromise to be recorded and the decree nisi to be set aside on that ground, and grant the wife freedom for filing a fresh petition for divorce on the ground of the alleged old adultery and subsequent desertion. Adultery itself is a nauseous thing, and, needless to say, old adulteries will be even more stinking, and cannot be allowed to be raked uplike this off and on as selfish interests dictate. In that view, I am not for granting permissionfor this compromise under such circumstances.

4. But Mr. Tyagarajan, for the petitioner,and Mr. P. S. Ramachandra Ayyar, for the respondent, both prayed that the decree nisi, passed 'ex parte' by me on 8-4-1952 should be setaside, and that O. M. S. No. 6 of 1951 shouldbe restored to file and disposed of afresh afterhearing the evidence to be adduced by the petitioner and the respondent. I agree to that as inthe peculiar circumstances of this case, and inview of the past history, it is desirable to setaside the order of decree nisi passed by me on8-4-1952 and hear the evidence adduced onboth sides afresh, and give a fresh decisionafter contest, especially as the respondent hasceased to abscond and has made himself available, as pointed out by his learned counsel,and is likely to contest the action and adduceevidence on his behalf. The prayer to recordthe compromise is accordingly refused, butthe prayer to set aside the decree nisi passedby me on 8-4-1952 is granted for the reasonsstated above, and O. M. S. No. 6 of 1951 is restored to file and posted to 5-11-1952 for hearing. In the peculiar circumstances, all theparties to this petition will bear their owncosts.


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