KA DYMMIEW SILTY GIRI Vs. U. MOONLY PASSAH

JUDGEMENT

(1.) WE have noticed certain shortfalls in the proceedings which cannot be overlooked. To obtain relief under the Divorce Act, 1869, for short, 'the Act', the conditions set out in the provisions of 'the Act' must be strictly complied by the parties. The Act is applicable to the partie? who profess Christian religion. However, if one of the parties profess Chritian faith it would give jurisdiction to the Court to give relief under 'the Act'. Dissolution of a marriage is a serious thing and the Court trying matrimonial cases should carefully follow the provisions of 'the Act'. The grounds on which a Christian marriage may be dissolved have been set forth in Section 10 of "the Act". Section 11 makes it obligatory on a husband, in a petition for dissolution of marriage on the ground of adultery, to make the adulterer a co -respondent unless he is exempted or excused by the Court on one of the three grounds mentioned in the Section. Leave for such "excuse" must be applied for and duly obtained. Collusion to obtain a decree for dissolution of a marriage has been expressly prohibited under Section 12 of 'the Act'. Collusion in judicial proceeding is a secret agreement between two persons that one should institute a suit against the other, in order to obtain the decision of a judicial Tribunal for some ulterior purpose, such collusion may be apparent or patent, but it is very rare. What is more common is secret or covert agreement to obtain a decree colluding with each other. However, collusion in matrimonial proceedings is said to exist where initiation of a suit for dissolution of marriage is procured or its conduct provided for by agreement or bargain express or implied, between the parties or their agents, vide Halsbury's Laws of England, 3rd Edn. Vol. 12 pp. 235, 236. Therefore, a collusive bargain for the procurement of a decree on a false case or improper pressure by financial bribery or threat or promise to abandon a defence is abjured The order of trial Court must show that it exercised in so far as it is reasonably possible, to find out absence of collusion in such proceedings. The Court should as well consider whether the petitioner has been accessory io or connived at or has condoned the adultery vide Section 13 of the Act. The expression "satisfied on the evidence" contained in Section 14 should not be taken lightly. The expression imposes a heavy duty on the Court to be satisfied. In majority of the cases we find that the grounds for dissolution is a commission of adultery by the other party. Adultery is voluntary sexual intercourse between a married man and some one other than his wife or between a married woman and someone other than her husband, vide Websters Seventh New Collegiate Dictionary. Adultery is consensual intercourse between a married person and a person of the opposite sex not the other spouse, during the subsistence of a valid marriage, vide Halsbury's Laws of England 3rd Ed. Vol. 12 pp. 235, 236.

(2.) WHAT is the standard of proof in a divorce proceeding? the expression "satisfied on the evidence" came up for consideration before the Supreme Court in E.J. Tahite v. Mrs. K.O White . Their Lordships have held that the words imply that the duty of the Court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition, if not satisfied. To prove a case, the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy what Sir William Scot described in Loveden v. Loveden, (1810) 161 ER 648 as "the guarded discretion of a reasonable and just man". Their Lordships quoted with approval the observations of Lord Mac Dermott in Preston Jones v. Preston Jones, (1951) AC 391 ,

(3.) WE would like to observe that the Court is not bound to pronounce a decree for dissolution of marriage even when the petitioner proved his/her case if it finds that the petitioner has been guilty of adultery or that the petitioner has been guilty of "unreasonable delay in presenting or prosecuting such petition" or the petitioner is guilty of cruelty towards the other party or the petitioner had deserted or wilfully separated himself/herself from the other party before the adultery complained of and without reasonable excuse the petitioner wilfully neglected or misconducted towards the other party, which conduced to the adultery. The observations are made for the guidance of the Courts below in charge of the Administration of Justice in matrimonial cases.