Sahaya Barathy vs Anthony Sahaya Rajaputhiraik

Ismail, C.J.—This matter has come to this court u/s 17 of the Indian divorce act, 1869. Before the learned district judge, Coimbatore, in O. S. No. 1 of 1979, the plaintiff who was the wife, had prayed for a decree of divorce. However the was presented u/s 22 of the Act. It was alleged in the plaint that she was the third wife of the defendant who married her after the death of his second wife; the defendant had five issues through his second wife and they were under the care and custody of the defendant; the defendant was addicted to several bad habits like betting in horse race, gambling and drinking, he indulged in too much in these bad habits particularly after the birth of the son to the Plaintiff, her pleading with the defendant to give up his bad ways and attend to the needs of the family did not bear any fruit and the defendant was not only adamant in wasting his money and health over those bad habits but also began treating the plaintiff cruelly and brutally and began beating the Plaintiff black and blue and forcibly removing all the jewels which she was wearing for spending in bad ways; and at one time he administered strong sleeping dose with coffee to the Plaintiff with out her knowledge and while she was under the effect of the sleeping dose he removed the thali chain from her neck and sold it away.

The further allegation in the plaint also showed about the beating by the defendant of the plaintiff, and according to the plaintiff, the defendant and his sons born through his second wife had conspired together to do away with her by administering poison for claiming Rs.10,000/- which may be paid by the Government after her death to her legal heirs, as she was employed in the Government and only after learning about these, she begin to live separately in another house at Coimbatore to which place she was transferred. She stated in paragraph 5 of the plaint that she apprehended that there was grave danger to her life and person if she continued to live, with the defendant as his wife, that the defendant also deserted her completely and that the defendant had become a convert to Hinduism in January 1978. It was with reference to these pleadings the Learned District Judge decreed the suit and the judgment itself is a very summary and scrappy one, and the same. After referring to the averments contained in the plaint merely states as follows: -

"The defendant was served with suit summons and Thiru P. Ramaswami, advocate, offered to appear for the defendant and file statement. Subsequently and two hearing dates, vakalat and statement have not been filed and the defendant has been set ex parte.

The point for consideration is. Whether the plaintiff is entitled to a decree for divorce for the reasons stated in the plaint?

The issue: The plaintiff has been examined as P. W. 1. and Exs. A. 1 to A-3 have been marked. I am satisfied from the evidence of P. W. 1 and Ex. 8. A-1 to A-3, that the plaintiff is entitled to a decree for divorce, as prayed for with costs.

In the result, therefore, the suit is decreed with costs as prayed for subject to the approval of the High Court, Madras."

We are forced to point out that the Judgment of the learned District Judge is thoroughly unsatisfactory end the learned District Judge has not applied his mind to the very provision of law under which the plaint was presented and the allegations were made. A decree dissolving the marriage cam be obtained u/s 10 of the Act and the grounds mentioned in that section, when the wife presents a petition praying that her marriage may be dissolved, are that her husband.

Has exchanged his profession of Christianity, for the profession of some other religion and gone through a form of marriage with another woman; or

Has been guilty of incestuous adultery; or

Of bigamy with adultery; or

Of marriage with another woman with adultery, or

Of rape, sodomy or bestiality, or

Of adultery coupled with such cruelty as without adultery would entitle her to a decree a Mensa et toro; or

Of adultery coupled with desertion, without reasonable excuse for two years or upwards,

Section 22 of the Act states-

"No decree shall hereafter be made for a divorce a mensa et toro but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of divorce a mensa et toro under the existing law and such other legal effect as hereinafter mentioned."

Consequently, a combined reading of Sections 10 and 22 of the Act will clearly show that the plaintiff had not made out any case for obtaining a decree dissolving the marriage on any one of the grounds mentioned in Section 10 and as a matter of fact, the plaint expressly invokes the provisions of Section 22 only. Under that section what the plaintiff was entitled to was a decree of judicial separation on the ground of adultery or cruelty or Section, and with reference to such decree, a reference to the High Court u/s 17 is incompetent. In this case the learned District Judge, without realising that in a petition u/s 22, there could only be a decree of judicial separation and them cannot be a decree for dissolution of marriage or divorce, has passed a decree for divorce, subject to the confirmation by this court. Apart from this, the learned District Judge had not even referred to the evidence in the case for the purpose of accepting the case of the plaintiff and decreeing the same.

Even when the defendant is absent, the duty of the court is to scrutinise the case of the plaintiff and go into the evidence, both oral and documentary, produced before it for the purpose of satisfying itself as to whether the plaintiff has made out a case or not and that duty has not been discharged in this case. Under these circumstances, we are clearly of the opinion that looked at from any point of view this court cannot confirm the decree passed by the learned District Judge, and as a matter of fact, as we have pointed out Already, with regard to a petition tinder Section 22 of the Act the reference itself is incompetent Hence, we set aside the decree of divorce granted by the learned District Judge, return the reference and direct him to dispose of the suit afresh as one presented under Sec. 22 of the Act, with reference to the allegations contained in the plaint and the evidence that had been produced by the plaintiff.

Order accordingly.