Research › Browse › Judgment

Gauhati High Court · body

1988 DIGILAW 9 (GAU)

Wenmanard Marak v. Poiby Momin

1988-01-27

J.M.SRIVASTAVA, K.N.SAIKIA, R.K.MANISANA

body1988
Judgement SAIKIA, C.J. :- The decree nisi passed by the Additional Deputy Commissioner, West Garo Hills, Tura under S.10 of the Indian Divorce Act, 1869 has come up for confirmation under Section 17 of that Act in this reference. 2. The petitioner sued for dissolution of his marriage with the respondent Smt. Poiby Momin on the ground of adultery coupled with desertion. Examining himself, he deposed that the parties were married according to the Christian rites on 15th April, 1954 whereafter they lived as husband and wife. After about 6 months of marriage the respondent deserted him and subsequently she lived with one Honith Sangma as his mistress and thereby committed adultery with him and the petitioner and the respondent have remained completely separate since then. He further deposed that there was no collusion or connivance between the parties in the matter of filing the petition for divorce; and that the respondent had no objection to the dissolution of their marriage which might be dissolved on the ground of adultery and mutual consent. He examined another witness Sabilson Momin who fully corroborated him 3. Respondent Smt. Poiby Momin examined herself and deposed that since after 6 months of their marriage, since 1954, till date they had been living in complete separation. She also admitted that she lived with one Honith Sangma as his wife and that she had no objection to the petition of her husband for divorce, and that she also submitted a petition on that day to the effect that she had no objection to the petition for divorce being granted. 4. The learned court on the basis of the evidence on records granted the decree nisi dissolving the marriage on the ground of adultery coupled with desertion. 5. We have perused the petition for divorce and the evidence on record and we find no infirmity in the finding that the respondent deserted the petitioner as long back as in 1954 and had since then been living separately with one Honith Sangma. This has been admitted by the respondent herself. We also find no evidence of any collusion or connivance between the parties in the matter of filing this petition for divorce. 6. We, however, find one procedural defect in this petition. This has been admitted by the respondent herself. We also find no evidence of any collusion or connivance between the parties in the matter of filing this petition for divorce. 6. We, however, find one procedural defect in this petition. Under S.11 of the Indian Divorce Act, 1869 where adultery is taken by the husband as a ground for dissolution of marriage the adulterer had to be made a co-respondent. Section 11 of that Act provides : "11. Adulterer to be co-respondent - Upon any such petition presented by a husband the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court : (1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed; (2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it; (3) that the alleged adulterer is dead". From the above provision there is no doubt that the petitioner shall make the alleged adulterer a co-respondent to the petition unless he is excused from so doing on one or more of the three grounds stated in the Section. From the records we do not find any application for such excuse to have been filed; and there is no order excusing the petitioner from making the adulterer a co-respondent. On the other hand, we find that the statement of the petitioner that the respondent has been living in adultery with one Honith Sangma has been admitted by the respondent. The question, therefore, is whether under any circumstances a decree for dissolution of marriage could be granted on a petition by the husband without impleading the co-respondent ? The answer is naturally in the negative in view of the discretion given to the court to excuse from making the alleged adulterer a co-respondent on any or more of the grounds stated in S.11. The underlying reasons for such a provision are two. Firstly, adultery is a serious matrimonial offence and it casts a reflection on the co-respondent. The answer is naturally in the negative in view of the discretion given to the court to excuse from making the alleged adulterer a co-respondent on any or more of the grounds stated in S.11. The underlying reasons for such a provision are two. Firstly, adultery is a serious matrimonial offence and it casts a reflection on the co-respondent. When allegation of adultery is disputed by the respondent the impleading of the adulterer as co-respondent is of assistance to the Court and even if the co-respondent does not appear and contest, appropriate inference may be drawn by the court under the facts and circumstances of a case. If the adulterer is dead or is otherwise not available there may be no justification for not granting the decree for dissolution of the marriage on the technical ground of the co-respondent having not been impleaded. In case the adulterer is unknown or uncertain the granting of the decree is not necessarily barred. Secondly, the impleading of the alleged adulterer prevents collusive divorce. 7. Would there be a bar when the alleged adulterers name is mentioned by the petitioner and the fact is admitted by the respondent ? In England under S.5 of the Matrimonial Causes Act, the English Courts have a statutory discretion to dismiss, in suitable cases a co-respondent or an intervener at the conclusion of the evidence of the party seeking to make a case of adultery against that co-respondent or intervener if in the opinion of the court there is no sufficient evidence against them and it is for the court to decide whether or not to put a corespondent or intervener to election as to calling evidence depending upon the circumstances of the case. (1957) 3 All ER 604 (606), In Mr. Charles Henry Smalley v. Mrs. Olive Muriel Smalley, AIR 1928 Nag 117(118), it was held that in the matter of excusing a petitioner from naming an alleged adulterer, a co-respondent in a suit for dissolution of marriage, the Indian Courts have not the same discretion as the English Courts. (1957) 3 All ER 604 (606), In Mr. Charles Henry Smalley v. Mrs. Olive Muriel Smalley, AIR 1928 Nag 117(118), it was held that in the matter of excusing a petitioner from naming an alleged adulterer, a co-respondent in a suit for dissolution of marriage, the Indian Courts have not the same discretion as the English Courts. In Idicula Jacob v. Mariyamma, AIR 1976 Ker 89 (FB) it has been held that the object of the Section being the prevention of any form of collusive divorce, it is not a mere formality to dispense with the presence of the co-respondent and that until leave to dispense with the presence of the corespondent has actually been obtained the suit cannot proceed. It is not sufficient to apply for leave at the trial and that a formal application has to be made before the trial court and it has to be supported by proper evidence that the conditions of S.11 have been complied with. In Idicula (supra) in a petition by husband for dissolution of marriage the adulterer was not made a co-respondent and the petition was dismissed for non-compliance of S.11. The High Court set aside the dismissal and remanded the case for giving opportunity to comply with the Section. It is true that the court should not lightly excused the party from making an enquiry which he can reasonably be asked to make as to the adulterer. In W.P. Bowman v. H.D. Bowman, AIR 1942 All 223(224), a letter from the wife to the husband admitting adultery but refusing to divulge the name of the adulterer was not considered to be enough for the purpose of exempting the husband from impleading the adulterer as co-respondent as required by S.11, and the husband, it was held, must show that he had made due efforts to discover the name of the adulterer. In D. Thomas v. Tara, AIR 1978 Mad 415 (FB), though the adulterer was known to the plaintiff and was not made a co-respondent the suit was held to be not maintainable. 8. Adultery having been a ground for dissolution of marriage the function of the Court is to ascertain whether there was or was not adultery committed as alleged. The burden to prove adultery is on him who alleges it. 8. Adultery having been a ground for dissolution of marriage the function of the Court is to ascertain whether there was or was not adultery committed as alleged. The burden to prove adultery is on him who alleges it. Adultery is voluntary sexual intercourse after the solemnisation of the marriage, with any person other than the spouse while the marriage subsists. In other words, it means consensual sexual intercourse with one of the opposite sex, while the marriage subsists. Under S.58 of the Indian Evidence Act. Facts admitted need not be proved. No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission. Admissions during the trial dispense with the proof of particular facts. Proof of such facts is dispensed with for the simple reason that the facts admitted require no proof. They are known as judicial admissions or stipulations dispensing with proof. It is a substitute for evidence and admission in this sense is a formal act, done in the course of judicial proceedings, which waives or dispenses with the production of evidence. However, the proviso to the Section gives power to the court to require a fact to be proved otherwise, even though admitted. In the matter of a petition for divorce by the husband on the ground of adultery of the wife this proviso will enable the court to insist on proof even when adultery is admitted. Where there is no reasonable suspicion of collusion or connivance between the parties the insisting of such proof is justified. 9. It is true that in the instant case the parties having admitted that they lived as husband and wife after their marriage only for six months and thereafter separated themselves as long back as in 1954 and about 33 years have rolled by. We have also no doubt in our mind that there is any collusion or connivance between the parties in the matter of filing the petition for divorce. We have also no doubt in our mind that there is any collusion or connivance between the parties in the matter of filing the petition for divorce. This is a case where adultery is alleged by the petitioner-husband and the adulterer is named by him at the hearing and the adultery with that named person is admitted at the hearing by the respondent-wife. Even so, as a matter of judicial discipline following the decisions in W.P. Bowman (AIR 1942 All 223) (supra) D. Thomas ( AIR 1978 Mad 415 ) (FB) (supra), Mr. Charles Henry Smalley (AIR 1928 Nag 117) (supra) Idicula Jacob ( AIR 1976 Ker 89 ) (FB) (supra) we find ourselves unable to confirm the decree nisi dissolving the marriage. We accordingly set aside the decree nisi and remand the petition to the trial Court for giving an opportunity to the petitioner to implead the co-respondent and when impleaded to issue notice to him allowing him to adduce evidence, if he so requires, and then to decide the petition on the basis of evidence then on record in accordance with law. In the event of the co-respondent not adducing any evidence after reasonable opportunity is given to him, it shall be open to the trial court to decide the petition on the basis of the existing evidence. 10. In the result, the decree nisi is set aside and the petition remanded. The reference is accordingly rejected. 11. MANISANA, J. :- I agree. 12. J.M. SRIVASTAVA, J. :- I agree. Order accordingly.