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2001 DIGILAW 550 (CAL)

Sudhangshu Kumar Sarkar v. Juthika Sarkar

2001-08-29

Alok Kumar Basu, Ashok Kumar Mathur, GIRISH CHANDRA GUPTA

body2001
JUDGMENT Girish Chandra Gupta, J.: This matter has come up for confirmation of a decree of divorce passed by the learned Additional District Judge, 8th Court, Alipore on 12-11-1984 under section 10 of the Indian Divorce Act. The facts of the case briefly stated are as follows : 2. The petitioner married the respondent in the year 1953 according to the Christian rites and customs at St. Lukes Church, P.O. Dayabari in the district of Nadia. Both the petitioner and the respondent are Christians by faith. Two female children born out of the wed lock died soon after their birth. The third issue being a male child, born on 17-11-1957 is stated to be residing with the petitioner. The married life of the petitioner was not happy. His case is that the respondent was quarrelsome and she made life of the petitioner unbearable and ultimately deserted him. The petitioner instituted a suit for Restitution of Conjugal-Rights, which culminated in a compromise but with no fruitful result. The respondent did not resume co-habitation with the petitioner. The case of the petitioner is that the respondent treated him with cruelty. She also developed illicit relation with her neighbour and committed adultery. The name of the adulterer being unknown to the petitioner, he could not be impleaded as a co-respondent in the petition. More than 20 years after the respondent deserted the petitioner, the petitioner instituted a suit for divorce principally on three grounds: (I) cruelty; (II) desertion, and (III) adultery. The suit was instituted on 28-5-1982. The respondent duly entered appearance. She took several adjournments for the purpose of filing a written statement, which ultimately she did not. She made an application challenging the maintainability of the suit, which was ultimately dismissed. The suit was posted for ex parte hearing. On 12-11-1984 the petitioner made an application seeking to drop the ground of adultery which was allowed on 12.11.1984 itself and thereafter the suit was taken up for hearing ex parte. In his evidence the petitioner deposed that he lived together with his wife, the respondent, till the end of 1959 and thereafter the respondent deserted him. He has also deposed about ill behaviour and mental torture inflicted on him by the respondent while she used to live with the petitioner. In his evidence the petitioner deposed that he lived together with his wife, the respondent, till the end of 1959 and thereafter the respondent deserted him. He has also deposed about ill behaviour and mental torture inflicted on him by the respondent while she used to live with the petitioner. The petitioner in his evidence has prayed for a decree of divorce on the ground of desertion since the beginning of 1960. 3. The evidence of the petitioner has remained unchallenged. The learned Additional District Judge granted the decree of divorce on the ground of cruelty and desertion on the basis of his finding “as evidence on oath remained unchallenged and he fully proved •the plaint case. I do not find any reason to disbelieve him.” 4. While it is true that the petitioner has been able to prove desertion but the same cannot be said with regard to the other ground of cruelty. Even assuming that the petitioner has proved both the grounds of desertion and cruelty, can the petitioner be granted a decree of divorce under section 10 of the Indian Divorce Act? The answer, in our view, is in the negative. In this respect the relevant portion of section 10 of the Indian Divorce Act may be noticed which provides that the husband-petitioner can obtain a decree for divorce only on the ground of adultery and no other ground. The provision for the wife-petitioner is even more stringent in that she cannot obtain a decree for divorce solely on the ground of adultery as the husband can. The provision of section 10 with regard to a husband's application is as follows: - “10. When husband may petition for dissolution. – Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery." 5. In this case initially the divorce was sought for on the ground of adultery coupled with the grounds of desertion and cruelty but later on the petitioner chose to drop the ground of adultery with the leave of court which was duly granted on 12-11-1984. Therefore, in our opinion, the only ground enabling the petitioner to obtain divorce was eliminated. In this case initially the divorce was sought for on the ground of adultery coupled with the grounds of desertion and cruelty but later on the petitioner chose to drop the ground of adultery with the leave of court which was duly granted on 12-11-1984. Therefore, in our opinion, the only ground enabling the petitioner to obtain divorce was eliminated. In the absence of pleading and proof of adultery, the question of granting a decree of divorce under section 10 of the Indian Divorce Act to the husband-petitioner does not arise. Therefore, the decree passed by the Additional District Judge is bad in law and cannot be confirmed. If any authority is needed for this purpose. We may quote a Special Bench judgment of this Court in the case of R.F. Toppo vs. V.K. Toppo, reported in AIR 1989 Cal. 128 , where Bhattacharya, J held as follows : “But accepting, as we do, that the wife-respondent has deserted the petitioner-husband, desertion of one spouse by the other, is not, by itself, a ground for dissolution of marriage under section 10 of the Divorce Act, but is only a ground of a divorce a mensa et thoro, i.e., judicial separation under section 22. In fact, the Divorce Act in section 10 provides for divorce on one ground only, the ground of adultery, which again, in the case of a wife seeking divorce, must be adultery, coupled with some other lapses on the part of the husband. Desertion, cruelty and the like are grounds for divorce, and not merely judicial separation under all the matrimonial laws operating in this country and in Swapna Ghosh (AIR 1989 Call) (SB)(supra), I have raised the question as to whether providing so many grounds of divorce to all the other communities while restricting a Christian divorce only to the ground of adultery amounts to discriminating the Christian spouses on the ground of religion alone and I indicated an affirmative answer. As already noted, while Mookherjee, J has reserved comment on the question, Nayak, J, has held the question to warrant serious consideration." 6. No one appeared on behalf of the petitioner. The learned Advocate appearing for the respondent has brought to our notice that the petitioner after obtaining decree nisi died on 27-3-1996, a xerox copy of the certificate of death has also been produced. No one appeared on behalf of the petitioner. The learned Advocate appearing for the respondent has brought to our notice that the petitioner after obtaining decree nisi died on 27-3-1996, a xerox copy of the certificate of death has also been produced. Even if we had not reached the decision as we have in this case, the decree could not have been confirmed. The present proceedings under section 17 of the Indian Divorce Act for confirmation of the decree for dissolution of marriage granted by the Additional District Judge is not a fresh proceeding but it is a constitution of the proceeding instituted under section, 10 of the Indian Divorce Act. In other words, the suit has not come to an end nor the marital ties between the petitioner and the respondent have finally been snapped. The result is that the petitioner continues to be the husband and the respondent continues to be the wife. It is, therefore, a case where the plaintiff died during the pendency of the suit. The result is that the suit has abated. If any authority is needed for this conclusion, we may refer to paragraph 891 of Vol. 13 of Halsbery's Laws of England, 4th Edition where the effect of death is stated thus: "Effect of death of parties. – The death of the petitioner or the respondent before decree absolute causes a suit to abate altogether." 7. For the reasons aforesaid, the decree nisi passed by the learned Additional District Judge is set aside and the suit is dismissed. Ashok Kumar Mathur, C.J.: I agree. Alok Kumar Basu, J.: I agree. Suit dismissed.