JORDEN DIENADOH Vs. SWARNJIT SINGH CHOPRA

JUDGEMENT

(1.) This petition under sections 18, 19 and 22 of the Indian Divorce Act, 1869 (hereinafter called "the Act") has been filed by the wife for declaring the marriage between the parties null and void and in the alternative to grant a decree for judicial separation.

(2.) Originally the petition had been filed only under sections 18 and 19 of the Act and subsequently the same was amended with the leave of be Court and a further relief for judicial separation was claimed under section 22 of the Act. It is alleged in the petition that the petitioner is a Tribal girl and belongs to the 'Khasi Tribe' of Meghalya. The petitioner was born and brought up as a Presbytarian Christian at Shillong. She qualified in the Indian Railway Traffic Service in the year 1974 through the Competitive Examination of the Indian Administrative Service and Allied Services held in the year 1973. She came to Delhi to join service in May, 1975. She was residing at Railway Rest House, New Delhi. The petitioner had gone to Y.W.C.A, Ashoka Road, New Delhi to meet a friend of hers, who was residing there. In Y. W. C. A. she was sitting in the verandah with her friend and the respondent came there and asked about some other girl who was residing in Y.W.C.A. The respondent kept on talking to the petitioner and her friend. A few days thereafter the respondent came to meet the petitioner and her friend and invited them to tea. The petitioner and her friend went to have tea with the respondent three days thereafter i.e. on 5-9-1975 and thereafter the petitioner met him alone for tea or coffee etc. During the course of these meetings, the respondent represented to the petitioner that he was a Graduate and a successful businessman having business in Canada and that he would be returning to Canada within a short while. The petitioner without seeing the green card of the respondent believed the representations made by the respondent. On or around 2-10-1975, the respondent proposed marriage and the petitioner accepted the proposal after about a week. It is further alleged that the parents of the petitioner were dead and she turned to no one for advice, and guidance and accepted the proposal of the respondent taking his representations on their face value. The proposal having been accepted it was to be decided what form of marriage is to be solemnized between them as the petitioner was a Christian and the respondent a Sikh. The petitioner wrote to her sister in Shillong to find out whether she could get married in the church. The petitioner's sister consulted the Paster of the Presbyterian Church to which the petitioner belongs and after consultation with the said Paster she wrote back to the petitioner saying that inasmuch as the respondent was not a Christian, the Church marriage is not possible. In these circumstances, there was no alternative but to have a civil marriage ceremony performed. The Petitioner assumed that all marriages are performed under the Civil Laws and she would be married in Court premises. The parties went to Tis Hazari Courts to get married and were accompanied by a Lawyer of the respondent. At Tis Hazari Courts, it was discovered by the petitioner, for the first time, that marriage could be solemnized only upon giving a notice of the intended marriage. The respondent took the advice of his Lawyer friend and apparently advised by him that a shorter notice is required for the purpose of solemnizing the marriage under the Christian Marriage Act whereas a longer notice is required for marriage under the Special Marriage Act. The petitioner was then unaware of the different consequences that ensued from marriage under either of the two Acts. The respondent and his Lawyer friend obtained some forms for giving the necessary notice of intended marriage. After filling up the form the same were handed over to the petitioner for her signatures. The petitioner signed the said forms. According to the averments in the petition, the petitioner did not know whether the notice was for intended marriage either under the Christian Marriage Act or under the Special Marriage Act. The petitioner was all along under the idea that the marriage was going to be solemnized under the Special Marriage Act. The notice which had been signed by the petitioner was handed over by the respondent to the Marriage Officer Mr. J.O.G. Russal. The petitioner has now discovered that not only the said notice was under the Indian Christian Marriage Act but that the same contravened the provisions of section 39 of the Indian Christian Marriage Act and as such the purported marriage between the parties was null and void in the eyes of law. It is further alleged that the notice of the intended marriage dated 9-10-1975 which was given by the parties, was bad in law as it did not specify the place where the marriage was to be solemnized as required by section 38 of the Indian Christian Marriage Act. The marriage is also invalid because no marriage in law could be solemnised without the issue of the certificate mentioned in section 51 of the said Act.

(3.) It is further alleged that at the time of the marriage no form of ceremony as contemplated by section 51 of the Indian Christian Act was adopted, apart from other than the recital required to be recited as per terms of section 51 of that Act. The said marriage was performed on 14-10-1975. On the wedding night, the parties admitted to have conjugal relations as husband and wife. The petitioner, however, discovered that the respondent suffered from premature ejaculation and at least qua her he was impotent and was thus unable to give the petitioner any pleasurable sensation and left her miserable and unsatisfied both in mind and body. In fact the impotency of the respondent qua the petitioner prevented her from having any orgazm during coitus. It is further alleged that as this was the first experience of the petitioner she expected that in due course of time she would get satisfactory orgazms so the respondent's ability and technique would improve but the same was not to be. The respondent qua the petitioner continued to ejaculate prematurely leaving her in a state of vacular congestion, leaving her physically tense, dissatisfied, mentally disturbed and physically unwell. All this led to deterioration in her physical health and well being. So much so, that the petitioner consulted a doctor for her bad health who on examination found no ailment with the petitioner and prescribed some tonics as the petitioner was losing weight. The petitioner, however, did not reveal to the doctor concerned the exact cause of the problem particularly as she hoped that the matters would improve. The petitioner alleges that in spite of the fact that the petitioner lived with the respondent for a period of about four years things did not improve or change and the respondent qua the petitioner continued to ejaculate prematurely to her continued great mental and physical distress. It is further alleged that the petitioner soon after her marriage to the respondent also discovered that the respondent was fond of drinking and gambling with his friends and in spite of the fact that he had no gainful employment continued to drink and gamble with his friends in spite of the petitioner's repeated requests not to do so. The respondent used to come home drunk and in the drunken state used to use foul and filthy language towards the petitioner. Whenever the petitioner protested against this attitude of the respondent he used to physically manhandle the petitioner and even went to the extent of driving her out of the matrimonial house in the middle of the night on a number of occasions. It is further stated in the petition that while the petitioner was in the service of the Indian Railways, she took the Indian Administrative Service Examination in 1978 and having qualified was selected in the Indian Foreign Service and is at present undergoing training as a probationer in the I.F.S. At the request of the respondent, the petitioner applied for and was allotted a room in the External Affairs Hostel on 1.8.1979. While the petitioner used to be at the office, the respondent would use the room for irresponsible behaviour by inviting his friends for gambling and drinking in the Government allotted accommodation. The respondent was doing this in order to aggrevate the misery of the petitioner. The petitioner after returning from her office could not even enter her single room apartment at the Hostel as the petitioner did not want to associate with the type of persons who were being entertained by the respondent. After about 4 years of mental and physical agony, the petitioner could not take it any more and was driven out of her matrimonial home by the cruel conduct of the respondent. All this period, the respondent continued to be rough not only in speech and conduct but also in bed which due to premature ejaculation of the respondent had become an area of misery for the petitioner. As the petitioner could take it no more she went to reside by herself. She could not take such a step earlier than on 29-8-1979 because whenever she told the respondent that she would leave him, the respondent threatened the petitioner by saying that he would cut her up into little pieces and would defame her in her official circle The petitioner went to reside at Maghalya House on 29.8.1979 and for her safety 74 hours police protection was given to her. In spite of that she was constantly harassed by the respondent in office by persistent threatening telephone calls. The respondent went to the extent of removing all her belongings from the room in the External Affairs Hostel on 30-8-1979 and left out only a few useless clothes. He also went to the extent of harassing the staff of the Hostel of Ministry of External Affairs to ensure that none would give help to the petitioner. The petitioner went to the Hostel on 6-9-1979 with police escort to check out of the Hostel as it had become too embarrassing to stay there. The respondent also lodged a false criminal case of theft against the petitioner with the police station, Karol Bagh, New Delhi. The petitioner was thus demoralised by having to appear at the police station and by having the police at her office for enquiries. The allegations in the complaint were all false and this conduct of the respondent further aggravated the cruelty of the respondent to the petitioner. It is further alleged in the petition that in the aforesaid circumstances and believing that she had been married to the respondent under the Special Marriage Act the petitioner left the instructions with her Lawyers to prepare proceedings under the Special Marriage Act for obtaining a decree of divorce and left for Calcutta. However, the Lawyers of the petitioner took a long time in preparing the petition for divorce and in the meanwhile the respondent filed a petition under the Indian Christian Marriage Act for restitution of conjugal rights against the petitioner on false and made up grounds. Since the petitioner was away from Delhi she could not electively pursue her petition or defend the petition filed by the respondent. As regards the petition filed by the respondent, the counsel for the petitioner could not attend the proceedings since he was busy in certain other cases and as a consequence the petition was decreed ex parte. In the petition filed by the petitioner under section 27 of the Special Marriage Act, notice was issued to the respondent who entered appearance. In his written reply he pleaded that the marriage between the parties had been solemnized under the Indian Christian Marriage Act. Faced with this situation, the petitioner sought liberty to file a proper petition and withdrew that petition. It is alleged that the respondent has been treating the petitioner with cruelty by his drinking and gambling and persistent use of foul, filthy and threatening language towards the petitioner. The respondent had also treated the petitioner with cruelty by physically beating and manhandling the petitioner and had even gone to the extent of driving the petitioner out of the residential house in the middle of the night. In addition to this cruel conduct the respondent had aggravated the acts of cruelty by filing a false criminal complaint against the petitioner with the police and had also written false letters to the Ministry of External Affairs where the petitioner is a probationer with the intention of damaging her professional career as a member of Indian Foreign Service.