DEEPAK BAKSHI Vs. ANITA

JUDGEMENT

(1.) As injuncted by Section 17 of the Divorce Act, 1869 (for short, the Act), the decree of divorce granted by the District Judge, Chandigarh, against the respondent wife on account of her adulterous life, is before us for confirmation, petitioner husband too has made an application (dated May 27, 1983) in that regard. During trial, proceedings against the respondent were ex parte as according to the Bailiff's report, she had refused to accept notice. It may be mentioned here that the petitioner has not impleaded any of the alleged adulterers as a co-respondent and this, as per the contents of his application under Section 11 of the Act, was for the reason that the respondent wife was leading the life of a prostitute and he was also not aware of the particulars of the persons with whom the adultery had been committed by her. Even the two men referred to in the petition under Section 10 of the Act have not been impleaded as respondents for the same reason that their addresses were not known to the petitioner. The trial Court, however, does not appear to have passed any order on this application (under Section 11 of the Act) of the petitioner.

(2.) By now it is well laid down that while called upon to confirm a decree for dissolution of marriage, made by a District Judge under the Act, the High Court is entitled and rather obliged to review the whole evidence and come to an independent finding whether the facts proved on record justify the granting of the decree or not. This clearly appears to be the intention and policy behind the legislative mandate contained in Section 17 at the Act. Equally well established is the proposition that standard of proof required in divorce cases under the Act is that "the Judge should be satisfied beyond any reasonable doubt as to the commission of the matrimonial offence". Besides this being the clear requirement of Section 14 of the Act, it has been, as ruled by the final Court in Earnist John White v. Mrs. Kathleen Olive White (Nee Meade), AIR 1958 SC 441. In that case their Lordships of the Supreme Court while approving the enunciation of law in Lovedon v. Lovedon, (1810) 161 ER 648 and Preston Jones v. Preston Jones, 1951 AC 391, in the light of the provisions of section 7 of the Act, have ruled in no uncertain terms that :- "In our opinion the rule laid down by the House of Lords, would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would therefore be such that if the Judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of Section 14 of the Act. The two jurisdictions, i.e. matrimonial and criminal are distinct jurisdictions but terms of Section 14 make it plain that when the Court is to be satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Courts in India would act and the reason for accepting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial causes." In the light of this dictum of the Supreme Court, I find that in the instant case, the evidence on record is far short of the standard of proof which can entitle the petitioner to get a decree of divorce. While saying as, though I am conscious of the fact that in such cases normally there is no direct evidence of adultery or at least the same is not easily available, yet the evidence led by the petitioner besides lacking veracity, also does not travel - in case it is to be accepted - beyond mere balance of probabilities. The District Judge does not appear to have scrutinised the evidence minutely and rather appears to have accepted it on its face value probably for the reason that the respondent had not chosen to contest the proceedings before him. The later circumstance, however, does not in any way permit the lowering down of the standard of proof required for the grant of a decree of divorce under the Act.

(3.) The case as set up by the petitioner in the trial Court and now pleaded before us is as follows. The parties to the litigation were married at Calcutta on December 1, 1973 in accordance with the provisions of the Indian Christian Marriage Act, 1872. There is no issue of the parties. They could rather have none as the respondent wife got herself operated much earlier to the marriage and was thus incapable of conceiving a child. After the marriage, they lived as husband and wife in Flat No. 4/1-B, Collin Lane, Calcutta. At the time of the marriage and subsequent thereto, the petitioner who is a qualified electrical and mechanical engineer, was employed with various shipping companies and on account of his duties on the ships, he had to stay away from Calcutta and the respondent during the following periods : -