SUDHANGSHU KUMAR SARKAR Vs. JUTHIKA SARKAR

JUDGEMENT

(1.) This matter has come up for confirmation of a decree of divorce passed by the learned Additional District Judge, 8th Court, Alipore on 12.11.1984 under Sec. 10 of the Indian Divorce Act. The facts of the case briefly stated are as follows : The petitioner married the respondent in the year 1953 according to Christian rites and customs at St. Lukes Church, P.O. Dayabari in the District of Nadia. Both the petitioner and the respondent are Christians by faith. Two female children born out of the wedlock died soon after their birth. The third issue being a male child, born on 17.11.1957 is stated to be residing with the petitioner. The married life of the petitioner was not happy. His case is that the respondent was quarrelsome and she made life of the petitioner unbearable and ultimately deserted him. The petitioner instituted a suit for Restitution of Conjugal Rights, which culminated in a compromise but with no fruitful result. The respondent did not resume co -habitation with the petitioner. The case of the petitioner is that the respondent treated him with cruelty. She also developed illicit relation with her neighbor and committed adultery. The name of the adultered being unknown to the petitioner, he could not be impleaded as a co -respondent in the petition. More than 20 years after the respondent deserted the petitioner, the petitioner instituted a suit for divorce principally on three grounds : (i) cruelty, (ii) desertion, and (iii) adultery. The suit was instituted on 28.5.1982. The respondent duly entered appearance. She look several adjournments for the purpose of filing a written statement, which ultimately she did not. She made an application challenging the maintainability of the suit, which was ultimately dismissed. The suit was posted for ex -parte hearing. On 12.11.1984 the petitioner made an application seeking to drop the ground of adultery which was allowed on 12.11.1984 itself and thereafter, the suit was taken up for hearing ex -parte. In his evidence the petitioner deposed that he lived together with his wife, the respondent, till the end of 1959 and thereafter, the respondent deserted him. He has also deposed about ill behaviour and mental torture inflicted on him by the respondent while she used to live with the petitioner. The petitioner in his evidence has prayed for a decree of divorce on the ground of desertion since the beginning of 1960.

(2.) The evidence of the petitioner has remained unchallenged. The learned Additional District Judge granted the decree of divorce on the ground of cruelty and desertion on the basis of his finding "as evidence on oath remained unchallenged and he fully proved the plaint case. I do not find any reason to disbelieve him."

(3.) While it is true that the petitioner has been able to prove desertion but the same cannot be said with regard to the other ground of cruelty. Even assuming that the petitioner has proved both the grounds of desertion and cruelty, can the petitioner be granted a decree of divorce under Sec. 10 of the Indian Divorce Act? The answer, in our view is in the negative. In this respect the relevant portion of Sec. 10 of the Indian Divorce Act may be noticed which provides that the husband -petitioner can obtain a decree of divorce only on the ground of adultery and no other ground. The provision for the wife -petitioner is even more stringent in that she cannot obtain a decree for divorce solely on the ground of adultery as the husband can. The provision of Sec. 10 with regard to a husband's application is as follows: