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1954 DIGILAW 126 (PAT)

Stiphan Surin v. Piary Marki

1954-11-08

B.P.JAMUAR, NARAYAN, S.K.DAS

body1954
Judgment , J. 1. This case has come to us on a reference made by the learned Judicial Commissioner of Chota Nagpur under Sec.17, Indian Divorce Act, The reference was heard by us on an earlier occasion, and by our order dated 21-12-1953, we directed the learned Judicial Commissioner to hold a further enquiry and take such additional evidence as the parties might adduce. We further directed that the marriage certificate showing the solemnisation of the marriage between the parties should also be produced. In pursuance of the said order the learned Judicial Commissioner took further evidence and has submitted a further report to this Court. 2. There has been no appearance before us either on behalf of the petitioning husband or the respondent wife or the co-respondent. The learned Government pleader has placed the entire evidence before us and has given us great assistance by placing the relevant case law on the principal questions for determination in this case. 3. The facts are these. Stiphan Surin, the petitioning husband, alleged that he was married, to the respondent Piary Marki in the Lutheran Church at Latakel, Police Station Bano, in the district of Ranchi on 2-2-1951. The parties are Indian Christians, and the marriage was solemnised according to the rites of the Lutheran Church the marriage certificate being Ex. 1 on the record. Soon after the marriage there was an allegation of adultery against his wife, and a panchayati was called, which was held in April, 1951. At this panchayati, the wife admitted that she had committed adultery with the co-respondent Amus Marki both in the village of her husband and at her fathers place. The petitioning husband gave evidence of these admissions at the panchayati. Two other witnesses were also examined. One of them was a punch at the panchayati. This witness Halan Surin said that the respondent wife was present at the panchayati and she admitted before the punches that she had illicit connection with Amus Marki. She admitted that she had committed adultery with Amus Marki at two places, namely, in village Kuluburu and also in village Ranjot which was the village of her father. A third witness Daniel Surin said that he was present at the panchayati which was convened at the instance of the petitioning husband. She admitted that she had committed adultery with Amus Marki at two places, namely, in village Kuluburu and also in village Ranjot which was the village of her father. A third witness Daniel Surin said that he was present at the panchayati which was convened at the instance of the petitioning husband. This witness was also one of the punches and he said that in the presence of all the punches Piary Marki admitted that she had committed adultery with Amus Marki. This was the evidence on the basis of which the learned Judicial Commissioner has submitted his further report. 4. Two principal questions arise for consideration in this case. The first question is if in the absence of any petition by the husband for confirmation of the decree nisi, this Court can pass an order confirming the decree nisi passed by the learned Judicial Commissioner. The second question is if on the admissions stated to have been made by the wife at the panchayati, it would be just and proper to pronounce a decree dissolving the marriage of the parties. The first question is covered by an authority of this Court in C. Gallimore V/s. Gallimore, AIR 1936 Pat. 15 (FB) (A), which lays down that the jurisdiction of the High Court to confirm the decree in a divorce action arises immediately upon a reference made by the District Court, and to complete that jurisdiction, it is not necessary that there should be any personal appearance of the petitioner before the High Court. We, therefore, hold that this Court has jurisdiction to pronounce a decree dissolving the marriage between the parties on the reference made by the learned Judicial Commissioner under Sec.17, Indian Divorce Act. 5. The second question presents a somewhat greater difficulty. The question as to whether a decree dissolving a marriage can be pronounced on the admission of adultery by the husband or the wife has been under consideration in several decisions, English and Indian. In Halsburys Laws of England, Hailsham Edition (Edn. 2) the following observations occur in para 973 at pages 660-61 of Vol. X "The evidence of the husband or the wife alone must be corroborated either by a witness or at least, by strong surrounding circumstances, especially where a party has made admissions, or a confession. A confession is only evidence against the person who confesses his guilt. 2) the following observations occur in para 973 at pages 660-61 of Vol. X "The evidence of the husband or the wife alone must be corroborated either by a witness or at least, by strong surrounding circumstances, especially where a party has made admissions, or a confession. A confession is only evidence against the person who confesses his guilt. It does not become evidence against the other person implicated unless the person who has confessed testifies in the witness-box". In Collins V/s. Collins and Deal, (1917) 33 TLR 123 (B), Shearman J. said in the course of his judgment that he would never act on an uncorroborated confession made by a spouse who wished the marriage tie to be dissolved; but in the case before him, his Lordship was satisfied of the honesty and truth of the wifes confessions and that she had made them with the object of being forgiven by the petitioner, and of preventing the marriage tie from being dissolved. His Lordship observed that cases of this kind in which the only evidence of adultery consisted of the admission of a spouse must be looked at with the most jealous scrutiny. 6. Three Indian decisions have been placed before us. The earliest decision is a Full Bench decision of the Bombay High Court in Bai Kanku V/s. Shiva Toya, 17 Bom 624 (C), where Jardine J., observed: "To hold the adultery of the husband proved on his mere, admission would, under the circumstance of the case, be imprudent and contrary to practice. The danger of collusion between the parties must always be borne in mind, and especially when, as in the present case, there has been a delay of several years in applying to the Court for relief". His Lordship referred to Williams V/s. Williams, (1805) 1 P and D. 29 (D). The same question was considered in Arnold V/s. Arnold 38 Cal 907 (E). Woodroffe J., summarised the legal position with regard to admission of a spouse in a case of this nature in the following words (page :912 of the Report). "In the present case admissions have been proved. Doubtless, caution is required in cases of Divorce to see that there is no collusion and an admission must be examined from this point of view. "In the present case admissions have been proved. Doubtless, caution is required in cases of Divorce to see that there is no collusion and an admission must be examined from this point of view. But if, as here, there is no reason to suspect collusion an admission may be as cogent evidence in these as in any cases". His Lordship quoted from Robinson V/s. Robinson, (1859) 1 Sw and Tr 362 (F), whore Sir Alexander Cockburn said: "The Divorce Court is at liberty to act and is bound to act on any evidence legally admissible by which the fact of adultery is established. If, therefore, there is evidence not open to exception of admissions of adultery by the principal respondent, it would be the duty of the Court to act on these admissions although there might be a total absence of all other evidence to support them. The admission of a party charged with a criminal or wrongful act, has at all times and in all systems of jurisprudence been considered as most cogent and conclusive proof; and if all doubt of its genuineness and sincerity be removed we see no reason why such a confession should not, as against the party making it, have full effect given to it". In Over John V/s. Muriel A. I. Over, AIR 1925 Bom 231 (G), the same question was under consideration and it was observed that great caution had been recommended in the English cases on the point, to guard against the reasonable possibility of collusion between the husband and the wife. 7. In (1865) 1 P. and D. 29 at p. 31 (D) it was pointed out: "The case cited is an authority for the proposition that the Court may act en the admissions of the wife although they are not supported by any other evidence. But I entirely concur with the observations of the Lord Chief Justice as to the great danger of relying entirely upon such admission. In each case the question will be whether all reasonable ground for suspicion is removed". 8. It is clear from a consideration of the decisions cited above that we must be satisfied about the honesty and truth of the admissions made, and when all reasonable ground of suspicion has been removed, we can act on the admissions. In the case under our consideration, there is no ground for suspecting collusion or condonation. 8. It is clear from a consideration of the decisions cited above that we must be satisfied about the honesty and truth of the admissions made, and when all reasonable ground of suspicion has been removed, we can act on the admissions. In the case under our consideration, there is no ground for suspecting collusion or condonation. The evidence in the record shows that the panchayati was called at the instance of the petitioning husband. Several witnesses, who acted as punches, have said that the wife admitted before them that she had committed adultery with the co-respondent. The husband further said in evidence that thereafter he did not live with the respondent as husband and wife. It is clear from this evidence that there could be neither collusion nor condonation by the husband. We are also satisfied about the honesty and truth of the admissions made by the wife. It is not a case in which the wife made certain admissions merely to dissolve the marriage tie. She made the admissions before respectable punches. There is also the corroborating circumstance that at no stage of the proceeding did the respondent or the co-respondent contest the petition which the husband had filed for the dissolution of their marriage. 9. Having regard to all these circumstances we are satisfied that all reasonable suspicion is removed with regard to the admission made by the wife before the punches at the panchayati, called by the husband. That being the position, there is no reason why we should not act on the admissions made by the wife. We accordingly confirm the decree nisi made by the learned Judicial Commissioner of Chota Nagpur and declare that the marriage between the petitioner Stiphan Surin and the respondent Piary Mark do now stand dissolved.