ANNIE P MATHEWS Vs. RAJIMON ABRAHAM

JUDGEMENT

(1.) WE have heard the appellant's learned counsel who has applied to the Court for disposal of this appeal on the ground that the delay is working very adversely against the interest of the appellant-wife. We have taken note of the facts of this case which are extremely sad, namely, that virtually from the day when the couple got married the respondent husband has been abusing and ill-treating the appellant-wife so much so that the marriage ultimately broke-up and the present appellant-wife filed a matrimonial case in No. 939/1998 before the Family Court at Bangalore under S. 10 of the Indian Divorce Act praying for dissolution of the marriage. The respondent husband was served before the trial court and he did not contest the proceeding. For the reasons that we shall presently deal with, the Family Court dismissed the petition against which the appellant -wife was required to file the present appeal. The respondent has been duly served by all means including paper publication and has not appeared nor does it seem that he is interested in contesting this proceeding. In this background, the application made by the appellant's learned Advocate is fully justified and we have therefore taken up the appeal for disposal today.

(2.) AS far as the merits of the case are concerned, the appellant-wife has, apart from the averments and the pleadings which are un-refuted, she has given evidence before the trial court and the trial court has accepted the evidence and held that a case of cruelty has been made out. Section 10 of the Indian Divorce Act as it originally stood requires that, in the case of the wife that she must not only establish the ground of cruelty and furthermore that adultery must also be established. In other words, it is necessary for the petitioner to establish that the respondent is guilty of matrimonial offences of adultery as also cruelty. The validity of the section came up for consideration before three High Courts and all the three High Courts have struck down the first part of the section whereby the requirement is that the petitioner has to establish adultery independently of the ground of cruelty. The decisions in question are the following :

(3.) THE learned Family Court Judge before whom these decisions were cited has come out with strange and totally untenable reasoning. She has in the first instance stated that even though these are decisions of three High Courts (interestingly enough, two of the decisions i. e. Bombay and Andhra Pradesh are Full Bench decisions) that the decisions of the Kerala, Bombay and Andhra Pradesh High Courts do not bind the Family Court in Bangalore. The learned trial Judge has gone on to state that the Family Court in Bangalore is only bound by the decision of the Karnataka High Court and not of any other High Court and furthermore, that she is not obliged to follow this view of the law unless and until there is a decision of the Karnataka High Court to this effect. This reasoning is wrong and we do hope that such views will not be expressed in future. We have had occasion to point out that in matrimonial cases where the parties are undergoing intense physical and mental trauma what is the first thing that is expected from the Court is a totally helpful attitude and time and again the Courts have pointed out that both the Lawyers and Judges in this field of litigation should invariably work towards a speedy and a happy end to the litigation. It is unfortunate that on the basis of such a wrong view the relief that ought to have been granted to the appellant had been denied to her and that she had to thereafter file an appeal to this court.