SMT. DEEPIKA ALIZABETH COUTO Vs. GABRIEL ANTHONY COUTO

JUDGEMENT

(1.) JUDGEMENT This reference purporting to be one under S. 17 of the Indian Divorce Act. 1869 (hereinafter referred to as the Act) reveals a curious state of affairs. A petition was made under S. 10 of the Act by the petitioner Smt. Deepika Alizabeth Couto in the court of the District Judge, Gorakhpur. The allegations in the petition were that she and her husband were married in the year 1965 according to the Christian rituals; that the respondent was a habitual drunkard who constantly beat the petitioner using filthy abuses and treated her with cruelty whenever she went to live with him at Jamshedpur. On account of this cruel treatment her physical and mental health was completely impaired and it was no longer safe for her to live with him. It appears that the respondent did not contest the petition in the court below. In support of these allegations, the petitioner examined herself. The learned District Judge passed an ex parte order dated Dec. 18, 1976 whereby he allowed the petition and a decree nisi was passed. Thereafter, the petitioner made the present application in this Court under S. 17 of the Act, praying that the decree nisi dated Dec. 18, 1976, passed by the District Judge, Gorakhpur, be confirmed.

(2.) WE have heard the learned counsel for the parties. It is apparent from the perusal of S. 17 of the Indian Divorce Act, 1869 as amended by the Indian Divorce (U. P. Amendment) Act XXX of 1957 that a decree passed under S. 10 of the Act, as in the instant case, does not require any confirmation by the High Court. Section 17 of the Indian Divorce Act, prior to the U. P. Amendment Act, stood as follows :-

(3.) NORMALLY we would have stopped short at this point but in view of the compelling circumstances of this case we are constrained to go a step further. We cannot escape noticing the fact that the decree passed by the District Judge is itself without jurisdiction and so cannot be sustained. The reason is that a perusal of the terms of S. 10 of the Act makes it clear that cruelty per se is not a ground for granting a decree for dissolution. The section very clearly provides that one of the grounds, on which the petition for the dissolution of marriage would lie, can be " adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa at thoro" . In other words, the cruelty of a special kind, coupled with adultery would furnish a ground for a petition of dissolution under S. 10. The construction that we are placing on this section finds support from two Full Bench decisions of the Madras High Court in Siluvaimani Ammal v. Thangiah Nadar (AIR 1956 Mad 421) and Ambujam G. Ammal v. M. R. Arumugham (AIR 1966 Mad 153). The ratio of these authorities is that cruelty by itself is not an adequate ground for divorce. If the wife is to succeed in a decree for divorce against the husband, she must show not merely cruelty of the special kind referred to above, but adultery coupled with such cruelty. In these circumstances it is clear that not only a reference to this Court under S. 17 of the Act was not competent but the petition initially presented in the court below under S. 10 of the Indian Divorce Act was also not maintainable and the entire proceedings were without jurisdiction.