PASUMPON GANDHI Vs. SHIRELY GANDHI

JUDGEMENT

(1.) Petitioner in F.C.O.P.No. 856 of 92 on the file of the Additional Principal Judge (Additional Family Court), Madras, dismissing his petition filed under Section 10 of the Indian Divorce Act, 1869 to dissolve the marriage performed between him and the first respondent herein, has filed the above appeal. He filed the said petition before the Family Court under Section 10 of the Indian Divorce Act to dissolve the marriage on the ground of adultery coupled with cruelty and desertion. It is contended before the Family Court that the marriage between him and the first respondent was solemnized on 25-01-1978 according to Christian rites. Thereafter they lived together till April, 1992. Alleging that the first respondent had committed adultery with the second respondent, he prayed for divorce. Before the Family Court, the petitioner-husband was examined as P.W.1 and marked documents Exs. A-1 to A-5. In spite of the fact that the first respondent herein, wife did not file counter statement and let in evidence disputing the claim of the husband, by the impugned order dated 8-3-1993, the Additional Family Court dismissed the petition of the husband; hence the present appeal. Even in this appeal, in spite of service of notice immediately after the admission of the appeal in 1993 and also second notice at the time of final hearing, the respondents, particularly the contesting first respondent-wife has not chosen to contest the appeal by engaging a counsel. In such a circumstance, we heard the argument of the learned counsel for the appellant.

(2.) After taking us through the various averments made in the petition filed before the Family Court, and the evidence both oral and documentary, let in by the appellant/husband, and by pointing out the fact that the first respondent-wife neither sent reply to the notice, nor filed counter statement before the Family Court and also not participated in the proceedings before the Family Court as well as before this Court, Mrs. Radhika, learned counsel for the appellant, would contend that inasmuch as the appellant has made out a case for divorce under Section 10 of the Indian Divorce Act on the ground of adultery, the Family Court ought to have dissolved the marriage and allowed the appellant's petition. She also contended that the Family Court failed to appreciate that there are sufficient oral and documentary evidence to prove the charges of adultery and the dismissal of his petition for want of sufficient evidence is erroneous and liable to be set aside.

(3.) We have already referred to the specific case of the appellant that the marriage between the appellant and the first respondent was solemnized on 25-01-1978 according to Christian rites. It is also his case that thereafter they lived together till April, 1992, and 3 children were born to them. In the petition it is specifically stated that he was employed in Air Force and posted at Chandigarh at the relevant time. The first respondent was residing at Madras and working in a construction concern. She refused to heed his advice to come and join him at Chandigarh by resigning her job. The appellant obtained voluntary retirement and returned back to Madras. He got an employment at Central Bank of India, Pondicherry and because of the attitude of the wife and to take care of children, he returned to Madras and settled down. During this time, he noticed her arrival at 10'O clock at night though her working hours closed at 5 P.M. On noticing her suspicious activities, he engaged Globe Detective Agency (P) Limited, and through their surveillance report it was found out that she was having illicit intimacy with one Rahamadullah @ Bashabai, second respondent herein, who is having his office at first floor, No.312, Thambu Chetty Street, Madras-1 as partner of Aaysons Apparels. When he lodged a police complaint on 22-1-92, she admitted that she is living in adultery and she wanted a Divorce. After some time she removed all the articles and left his company and living in adultery forgetting her husband and children. It is relevant to note that before filing the said petition for Divorce on the ground of adultery, he sent a legal notice dated 7-7-92 to the first respondent herein. She did not send any reply. Even before the Family Court, she did not file a counter statement and contest the Divorce petition. In his evidence as P.W.1, the appellant /petitioner has stated about his marriage with the first respondent on 25-1-1978, birth of 3 children, his visit to his native place, the subsequent information that the first respondent had left their house at Chennai, and her intimacy with the second respondent. He also specifically stated that since the first respondent herein is having relationship with the second respondent, she failed to live with him, and she used to return home late during night and made a police complaint also. Apart from the specific assertion regarding her illegal relationship with the second respondent and his statement as P.W.1, the appellant has also produced Xerox copy of the marriage certificate, legal notice, acknowledgement, complaint to the police as well as the copy of the report of the Detective Agency as documents. It is true that the report of the detective agency had not been marked through the author of the same. The Family Court is right in not giving importance to Ex. A-1 report given by the private detective agency. However, we have to find out whether the appellant-husband has made out a case for Divorce on the ground of adultery in terms of Section 10 of the Indian Divorce Act, 1869.