JOSE Vs. ALI JOSEPH

JUDGEMENT

(1.) FA A well-educated young couple with two children are before us. The husband filed a petition under S. 10 of the Indian Divorce Act, for short, the Act, to snap the marriage tie by a decree of the court dissolving the marriage with his wife, the counter petitioner. Their marriage was on 21-5-1979. Parties belong to Roman Catholic Community and their marriage was solemnized at the Bishop's House, Kottayam. After the marriage, the counter petitioner gave birth to two children.

(2.) S. 10 of the Act provides that a husband may present a petition to the District Court or to the High Court praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. The provision for dissolution of marriage, particularly, a dissolution at the instance of the husband, is a very stringent provision. The husband is entitled to claim divorce only if the wife is found to be guilty of adultery. Even in a case where the marriage is irretrievably broken and the parties cannot lead with peace and tranquility a married life, for sufficient reasons, other than the ground of adultery and even if the court is satisfied that the marriage relationship cannot be resurrected by conciliation so long as the law provides that the court can grant a decree of dissolution of marriage, only if the wife is found to be guilty of adultery, the position is that the court has to fold its hands and say that the court is helpless

(3.) WE have to remember that as Lord Hailsham once said: "the rule of law is a confidence trick". What he meant was that the rule of law depends on public confidence and public acceptance of the system whereby Parliament makes the laws, the courts enforce them and the vast majority of citizens accept them until they can get them changed. &quot