RAMISH FRANCIS TOPPO Vs. VIOLET FRANCIS TOPPO

JUDGEMENT

(1.) I have no doubt that we can not but decline to confirm this decree nisi for dissolution of marriage passed by the learned District Judge in the Divorce Suit under Section 10 of the Divorce Act, 1869, which has come up before us for confirmation under Section 17 of the Act. I am, however, of opinion that, for the reasons stated hereinafter, a decree for divorce a mensa et thoro, i,e,, a decree of judicial separation should instead be passed in favour of the petitioner-husband against the wife-respondent under Section 22 a0 the Divorce Act.

(2.) In Swapna Ghosh vs. Sadananda Ghosh (1988-2 Calcutta Law Journal 156) disposed of by this Bench, I have confessed my inability to appreciate the utility of retaining any longer the provisions of Section 17 of the Divorce Act of 1869, which compulsorily requires confirmation by this Court of the decree for dissolution of marriage passed by the District Court and that too, by a Bench of not less than three-Judges. It may be that the concerned Legislature in that mid-Nineteenth century intended the continuance of the marriage to be the rule and dissolution thereat to be the exception and attached so great importance to the continuance of marriage that it thought that a marriage could be allowed to be dissolved only after a District Judge had decreed the same and a three-Judge Bench of the High Court was also satisfied that it could not but be so decreed. Inspiration might have been derived from the law relating to Criminal Procedure whereunder a death-sentence could not, and even now cannot, be executed unless confirmed by the High Court and since the decree for divorce results in death of the marriage, the relevant law intended to express its very grave concern in respect of such a decree, as it did and still does in respect of a sentence of death. But as I have pointed out in some details in Swapna Ghosh (supra), under the Special Marriage Act of 1954 providing the general matrimonial law of the land and the various special matrimonial laws governing all the communities in India except the Christians like the Hindu Marriage Act of 1955, the Parsi Marriage and Divorce Act of 1936, the Dissolution of Muslim Marriages Act of 1939, etc., a decree of dissolution by a District Court, and in some cases, even by Courts subordinate thereto, is final conclusive and binding, unless the party aggrieved chooses to prefer appeal, while, because of Section 17 of the Divorce Act, 1869, a similar decree between the Christian spouses would not acquire legal efficacy unless the proceedings are dragged to the High Court before a three-Judge Bench and confirmed by it. I have pointed out that these provisions under Section 17 have been very rightly done away with by an Amendment Act by the Uttar Pradesh State Legislature, being Uttar Pradesh Act No. 30 of 1957 and that, as has also been observed by a Special Bench of the Madhya Pradesh High Court in Meena vs. John Pormu (A.I.R. 1985 Madhya Pradesh 85 at 87), it is high time that similar amendment is introduced in the Divorce Act by Parliament on all-India basis or at least by our State Legislature without waiting any further for that august body to move in its due course. I have also said that these provisions may also appear to have discriminated the Christians on the basis of religion alone thus transgressing Article 15 of the Constitution and also to be violative of procedural due process for denying procedural reasonableness to the Christians, in the context of the other matrimonial laws operating in the country. Both my Lords Mookherjee, J. and Nayak, J., have been pleased to concur with me in holding that the question of introducing some such amendment deserves very serious consideration. But while his Lordship Mookherjee, J, has, in his separate judgment (supra, at 163-164), expressly reserved his views on the Constitutional questions raised by me, his Lordship Nayak, J., if I have read his separate judgement correctly, has held (supra, at 164) those questions also to warrant serious and in-depth consideration I have also, in Swapna Ghosh (supra), has raised several other questions relating to the Constitutional vires of some of the relevant provisions of the Divorce Act though I have not finally decided those questions in that case as determination of those questions were not indispensably necessary for the disposal thereof. I could not then lay hand on a decision of Alagiriswami, J., then of the Madras High Court (subsequently elevated to the Supreme Court) in Solomon Devasahayam Selvaraj vs. Chandirah Mary (1908-1 Madras Law Journal 289) and I am now glad to find that the learned Judge also thought it fit to advert to some of those questions and expressed himself (at 294) as hereunder: "The Indian Divorce Act, 1869 is wholly out of date. Its provisions were exact copies of the English Matrimonial Causes Act of 1857. Under that Act, it was enough if the husband proved adultery in order to enable him to get a divorce from his wife. On the other hand that was not enough for a wife to get a divorce against her husband. Something more must be proved. The law had been amended in England as early as 1923 by the Matrimonial Causes Act, 1923, putting the husband and the wife on equal footing. The Matrimonial Causes Act of 1937 added some more grounds for divorce. The law in India under the Hindu Marriage Act is practically the same as in England at present. The Parsi Marriage Act was amended in 1936 to put it more or less on the same basis as the English law of 1937. Only the Divorce Act, which applies to Christians, is at least 50 years behind the times. No one will consider that the Christians are a backward community compared to the other communities in the country. It is high time that the Indian Divorce Act is brought into line with the Hindu Marriage Act, the Parsi Marriage Act and the Special Marriage Act, 1954. Indeed, the Special Marriage Act even provides for divorce by consent of parties."

(3.) Now to the merits. The decree obtained by the petitioner-husband is an ex parte one as the wife-respondent did not turn up to contest the petition even though she filed her Written Statement. It needs hardly to be stated that a judicial proceeding, even if not defended or contested, can never be a matter of easy insouciance but must be heard and determined with all due care and attention. But since the whole of our civilized Society germinates around the institution of marriage which concerns not merely the spouses and the children but also the society at large and since the Society itself is vitally interested in the maintenance of marriage and also its dissolution, wherever necessary, trial of matrimonial causes must, as a rule, be a matter of, most anxious advertence. But even then, though the petitioner-husband in this case has only examined himself and there is no witness to corroborate him, I am nevertheless inclined to hold that the finding of the Trial Judge that the wife-respondent has deserted the petitioner for more than two years without reasonable execuse is justified and should be affirmed. Not only we have the categorical, and obviously unchallenged, assertion of the petitioner in his deposition that she "left the matrimonial home on 1st January, 1981" when she was pregnant, "gave birth to a female child who died after one day's of birth", "did not give any information about (its) birth, death and cremation", "is not willing to come back" and that the petitioner "tried to get her back but to no effect", we have also the wife's own admission in her written Statement about such leaving the matrimonial home and of not coming back thereto, as alleged. It is true that, as has again been recently pointed out by a Division Bench of this Court in Kamal vs. Kalyani (A.I.R. 1988 Calcutta 111), the mere fact of one spouse leaving the matrimonial home does not necessarily make him or her the deserter, unless it is shown to have been done with the requisite animus deserndi, i.e., the intention to desert and the animus non-revertendi, i.e., the intention not to return. But the wife-respondent in paragraph 11 of her written statement has clearly asserted "that the conduct of the petitioner is so abhorrent and heinous that no lady could keep any communion with him". We are inclined to think that reading such assertion in the respondent's own written statement along with the case made out by the petitioner in his deposition, we can not but accept the case of the petitioner that the wife respondent has deserted him having left the matrimonial home with the requisite animus deserndi and animus non-revertendi.