OSBORNE LEWIS JORDAN Vs. PHYLIS SYLVIA JORDAN

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment of the learned Single Judge dated 12th February, 1985 whereby the learned Single Judge remanded the case back to the Additional District Sessions Judge, Delhi for a fresh decision and refused to exercise power under Section 8 of the Indian Divorce Act, 1869 (hereinafter referred to as the Act) and also without disposing of the main appeal on merits.

(2.) The facts of the case lie in a very narrow compass. The appellant and respondent no. I being Christians were mairied according to Roman Catholic rites ait St. Thomas Church, Middleton Road, Calcutta on 26th November, 1949. A female child was born out of this wed-lock on 5th December, 1956. Since the appellant got a job at Delhi the appellant alongwith respondent no. 1 shifted to Delhi in the .year 1967. However, sometimes in the year 1974 respondent no. I returned to Calcutta and refused to come back to Delhi. The appellant pursuaded her to come back but without any success. The appellant, therefore, filed a petition for judicial separation in the court of Additional District Judge Delhi in the year 1979. Though notice was sent to respondent no. 1 she did not appeat and therefor the Additional District Judge on 1st February, 1980 granted an ex-parte decree for judicial separation.

(3.) On 15th October, 1980 a petition was filed by the appellant in the court of the Additional District Judge. Delhi for dissolution of marriage under Section 10 of the. Act on the ground that respondent no. I was living in adultery with respondent no. 2. Since notice of the petition could not be served on either of the respondents the same was served by publication. Inspite of publication of the notice the respondents did not choose to appear before the Additional District Judge in the said proceedings and therefore, the proceedings were held ex-parte against the wife. The learned Additional District Judge recorded the evidence of the appellant and thereafter passed an order on 30th March, 1982 refusing to grant divorce. While dismissing the petition for dissolution of marriage the learned Additional District Judge held that there was lack of sufficient proof to substantiate the allegation made by the appellant regarding the adulterous relations of respondent no. 1 with respondent no. 2. The learned Additional District Judge further held that though neither the wife nor the co-respondent had chosen to contest the petition, the onus was on the appellant to substantiate his allegation made by him in the petition against the wife. Against this order dated 30th March, 1982 the appellant filed a first appeal being F.A.O. 155 of 1982 in this Court.